Opinion
1:17-cv-00857-CL
04-01-2022
JOSHUA MOULIN, Plaintiff, v. CITY OF CENTRAL POINT, KRISTINE ALLISON, MICHAEL ANDERSON, and BRIAN DAY, Defendants.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Joshua Moulin, a former lieutenant with the Central Point Police Department (“Plaintiff'), brings this case against defendants, his former employers, for malicious prosecution and violation of his civil rights. This case comes before the Court on defendants' joint motion for summary judgment. Oral argument was heard on November 23,2021, For the following reasons, this Court recommends the Motion for Summary Judgment (#119) be GRANTED in part and DENIED in part.
LEGAL STANDARD
Summary judgment shall be granted if “the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). The court cannot weigh the evidence or determine the truth but may only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002). An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
When a properly supported motion for summary judgment is made, the burden shifts to the opposing party to set forth specific facts showing that there is a genuine issue for trial. Id. at 250. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue for trial. Devereaux, 263 F.3d at 1076. In assessing whether a party has met its burden, the court must view the evidence in the light most favorable to the nonmoving party. Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011). However, facts must be “viewed in the light most favorable to the nonmoving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). All reasonable doubt as to the existence of a genuine dispute of material fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir.1976). “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.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
BACKGROUND
Plaintiff is a former lieutenant with the Central Point Police Department (“CPPD”) who was initially hired by CPPD in 2003. Am. Comp. ¶ 19. During his tenure with CPPD, Plaintiff was promoted from patrol officer to detective, to sergeant, and to lieutenant. Id. ¶ 19. In 2005, Plaintiff obtained his Certified Forensic Computer Examiner credentials and created and led the CPPD High-Tech Crimes Unit. Id. ¶ 24-26. That unit eventually expanded into a “multijurisdictional task force” that became known as the Southern Oregon High-Tech Crimes Task Force (“Task Force”), which Plaintiff continued to lead up to the time of his resignation from CPPD in July 2012. Id. Plaintiff also established a Law Enforcement Advisory Board (“LEAB”) which oversaw the operations of the Task Force and consisted of a representative from each participating agency. Id. ¶ 28.
In early May 2012, CPPD personnel discovered apparent discrepancies between a recorded meeting of the LEAB in February 2012 and the LEAB meeting minutes. Defendant CPPD Chief Kristine Allison (“Allison”) became concerned that Plaintiff had altered the minutes to include new language granting Plaintiff additional authority over time off requests by . Task Force members. Henderson Decl., Ex. 101 at 46-47, 53-54, 62-63. Shortly thereafter, Defendant Allison referred Plaintiff to the Oregon State Police (“OSP”) for the alleged crime of tampering with public records. However, on May 17, OSP met with Defendant Allison and Defendant CPPD Captain Brian Day (“Day”) and ultimately declined to pursue the criminal charges of tampering with public records.
In May 2012, Defendant Allison served as acting chief of CPPD. She became chief in June 2012. Plaintiff had expressed his intentions to apply for the position of chief, but was allegedly not afforded the opportunity to apply.
Defendant Day served as a detective in May 2012 was promoted to captain in June 2012.
Around the same time, or just prior to the discovery of the allegedly altered minutes, the Ashland Police Department (“APD”) had complained about Plaintiff and had accused him of responding too slowly to a request to process a seized laptop in a high-profile homicide case. Am. Comp. ¶ 47. APD had the laptop reviewed by another lab and alleged to Chief Allison that Plaintiff had been dishonest about the amount of time it would take to process the laptop. On April 20, 2012, the APD formally withdrew from the Task Force. Id. ¶ 51. Shortly thereafter, on May 2,2012, Medford Police Department also began to express concerns about Plaintiffs leadership of the Task Force. Klamath Falls also allegedly shared concerns about Plaintiffs supervision and suggested that they were also considering pulling their staff from the Task Force.
On May 16,2012, Plaintiff was placed on paid administrative leave pending an internal investigation of the complaints made about Plaintiff. On that date, Defendant Allison called Plaintiff into her office and handed him a memo entitled, “Paid Administrative Leave.” Id. ¶ 69; Hunter Decl., Ex. 12. Also present were Central Point City Manager Chris Clayton (“Clayton”), City IT Director Jason Richmond, and Klamath Falls Detective and Task Force member Mike Anderson. The memo stated that effective immediately Plaintiff was being placed on administrative leave “pending a thorough investigation into issues surrounding the administration and management of the [Task Force] as well as the withdrawal of the Ashland Police Department from the [T]ask [F]orce.” Id at 1. The memo continued in relevant part:
Chris Clayton served as assistant city manager in May 2012, became interim city manager in October 2012, and became city manager in March 2013. Winemiller Decl, Ex. 1 at 5.
As part of this Administrative Leave, you are also required to maintain complete separation from all City and [Task Force] hardware, software and communication systems including systems hosted online by others and make no attempt to access the aforementioned.... Furthermore, you are required to turn over the following items/information to the City Administrator's designee:
• Your personally assigned key fob used for physical building door access.
• All spare key fobs used for physical building door access.
• All hardware and software used for programming physical building door locks.
• Administrative security credentials for the physical security software system.
• All network Domain level and Local Administrative security credentials.
• All Server Service account credentials.
• All [Task Force] phone system administrative credentials.
• All City or [Task Force] Desktop, Laptop & Tablet Computers within your possession.
• All City or [Task Force] cellular phones and cellular data devices.
• All Hightechcops.com administrative credentials.
• All [Task Force] Myspace.com administrative credentials.
• All [Task Force] Twitter.com administrative credentials.
• All [Task Force] Facebook.com administrative credentials.
• Any and all passwords as directed.
• Any additional related information as directed.Id. at 1-2.
Plaintiff alleges he “had no opportunity to read or digest the administrative leave memo” and that Defendant Allison refused to answer his inquiry as to why he had been placed on leave. Am. Comp. ¶ 69. Other personnel present at the meeting recalled “that [Plaintiff] took several minutes to review the Memorandum after being asked to do so by the Chief.” Henderson Decl., Ex. 113. Although the memo contained signature lines for Plaintiff, Defendant Allison, and Clayton there is no dispute that no one signed the memo at the meeting. Id. ¶ 70. Defendant Allison collected Plaintiffs gun, badge, and holster. Id. ¶ 71. Plaintiff was then escorted to his office where he collected personal items and where Defendant Allison asked him about passwords, pending cases, and upcoming proceedings. See Henderson Decl., Ex. 109 at 21-22. Plaintiff states that Defendant Allison gave him permission to access two work computers to retrieve the requested information and to set up an out-of-office reply on his CPPD and Task Force email accounts. See id.; Am. Comp. ¶ 72.
After Plaintiff turned over the requested items at CPPD, Defendant Day drove him home. Defendant Day noted the time was approximately 2:40 p.m. Plaintiff contends that, once he arrived home, he “realized he had an older MacBook Pro laptop ... at his house”. Id. ¶ 73. Upon arriving home, Plaintiff states that he “opened the computer to remove his personal information before turning the laptop into the Task Force.” Id. ¶ 74. Specifically, Plaintiff alleges that he “deleted the KeePass X program” and “securely erased the free space on the computer's hard drive.” Id. ¶ 74. Plaintiff alleges that he then called Defendants Day to come pick up the laptop, Id. ¶ 75., but Defendants state it was Defendant Day who called Plaintiff regarding a password. Regardless, Defendants Day arrived back at Plaintiffs residence around 5:45 p.m. on May 16, and was handed a 13” MacBook Pro laptop (the “MacBook Pro”).
Initially, CCPD requested that OSP conduct the internal investigation regarding Plaintiff. However, OSP was not able to conduct the investigation, so an independent outside entity, Local Government Personnel Institute, was hired to conduct the investigation. Plaintiff reached out to Defendant Day on numerous occasions to request information and updates about the investigation, but Defendant Day “refused to provide any information.” Id. ¶ 76.
The record shows that the MacBook Pro was powered on and accessed on May 31, 2012, in Defendant Allison's office. Id. ¶ 84; Winemiller Decl, Ex. 3 at 2-15. The record also shows that CPPD personnel accessed the laptop again on June 1, 4, and 7. Id. ¶ 85. Plaintiff alleges that Defendants were “searching for any other angles they might pursue to develop some type of criminal case against [him],” and “[d]espite realizing that [Plaintiff] had deleted information from the laptop ... [they] continued browsing through the MacBook in a forensically unsound manner that altered or destroyed its contents.” Id. ¶ 78, 85. .
On June 12, 2012, OSP opened a criminal investigation into Plaintiff “based on CPPD's claims that [Plaintiff] had deleted information from the MacBook Pro in violation of the terms of his administrative leave memo.” Id. ¶ 90. Plaintiff alleges that there was no basis for the investigation because “CPPD knew [he] had never fully read or discussed, much less agreed to, the terms of that memo.” Id. Plaintiff also alleges OSP referred to the leave memo in an application to search Plaintiffs Dropbox account but failed to mention that it was unsigned by Plaintiff. Id.¶ 91. Plaintiff alleges that CPPD knowingly provided other false information to OSP, such as Defendant Day telling an OSP detective that the MacBook belonged to the city of Central Point when it actually belonged to the Task Force. Id. ¶ 92.
One month later, on July 12, 2012, Plaintiff resigned from his position with CPPD, moved to Nevada, and started a new cybersecurity job for the federal government. Id. ¶ 95. On August 1, 2012, CPPD issued a joint press release with the Jackson County District Attorney (“DA”) office stating that Plaintiff was under criminal investigation and that the DA had “made a formal request to the Criminal Justice Division of the Oregon Department of Justice ... for their assistance.” Id. ¶ 96. Plaintiff maintains that the press release was the first time he learned of the criminal investigation. Id. ¶ 97.
Plaintiff was interviewed by two OSP detectives on September 10, 2012. Id. ¶ 103. During the interview, Plaintiff asserts that he “truthfully informed the investigators that he had securely deleted his personal passwords” on the MacBook Pro before he turned it in. Id.
In January 2013, the Oregon Department of Justice (“DOJ”) prepared a prosecution memorandum that evaluated the strengths and weaknesses in the criminal case against Plaintiff. Henderson Deel., Ex. 32. In that memo, the DOJ recommended charging Plaintiff with “one count of Computer Crime pursuant to ORS 164 377 a class C felony and one count of Official Misconduct in the First Degree pursuant to ORS 162 415 a class A misdemeanor.” Id. at 3. Plaintiff alleges that the memo contained “misleading information provided by Defendants that strengthened the case for prosecution” including the false statement that Plaintiff had been given “oral instructions” to maintain complete separation from work computers when he had not been given such instructions. The memo also stated that the MacBook had been “completely wiped and restored to factory settings” on May 16,2012; that Cleaner had been run on that date; and that CPPD personnel had only accessed the laptop once, on May 31,2012. Id. at 33. On January 29,2013, the DOJ prosecution memorandum was shared with Oregon Attorney General Ellen Rosenblum, who responded, “I agree with the recommendation.” Henderson Declaration, Ex. 31.
Over the course of 2013, Plaintiff voluntarily submitted to three polygraph examinations as “an additional effort to prove that he did nothing wrong.” Am. Comp. ¶ 105. Plaintiff states that he passed the polygraph examinations by truthfully answering, “no,” when he was asked whether he “deliberately deleted any official files from that [MacBook Pro] after your administrative leave.” Id.
On November 15,2013, DOJ Assistant Attorney General (“AAG”) Daniel Wendel (“Wendel”) informed Plaintiffs counsel that the DOJ intended to charge Plaintiff with computer crimes and official misconduct. Id. ¶ 118. Plaintiff was shown a memorandum that stated Plaintiff had been provided both verbal and written instructions to maintain separation from his work computers, and that Plaintiff “admitted in his interview that he had received and understood the notification.” Henderson Decl., Ex. 34. The memo also stated that the DOJ was “accepting that [Plaintiff] only deleted personal data and programs” and there was “sufficient evidence to charge [him] with the above-listed crimes.” Id.
Thereafter, in January 2014, the DOJ requested a signed copy of the administrative leave memorandum that had been given to Plaintiff on May 16, 2012. OSP asked the city of Central Point and CPPD for assistance in locating a signed copy. Central Point and CPPD were unable to find a signed copy of the memorandum at the time.
On February 19,2014, Plaintiff was indicted by a Jackson County Circuit Court grand jury that charged him “with three criminal counts-one felony count of ‘computer crime' as well as misdemeanor counts of both ‘computer crime' and ‘official misconduct.'” Id. ¶ 128. Plaintiff's request to testify before the grand jury was denied by prosecutors.
On August 28, 2014, Plaintiff participated in a settlement conference with the DOJ. Id. ¶ 132. Shortly before the conference was scheduled to start, Defendant Day sent a text message to OSP Detective Scott that included an image of the administrative leave memorandum that included the signatures of Defendant Allison and city manager Clayton that “purported to be dated May 16,2012.” Id. Plaintiff alleges that “[t]his newly discovered, ‘signed' copy of the memorandum was never seen by anyone prior to the settlement conference.” Id. ¶ 133. Defendant Day testified that a signed copy of the memorandum had been located by the city of Central Point sometime in July or August 2014, and further testified that he notified Detective Scott “immediately” when the signed copy was found and then sent the image on August 28 because Scott had not yet picked up a copy of the signed memorandum. Day Decl. 3-4.
In April 2015, Plaintiffs criminal defense attorneys filed a motion to dismiss the charges . against him for “destruction of evidence”. Henderson Decl., Ex. 141 at L The state court held a two-day hearing, and on May 8, 2015, the court “dismissed all charges against [Plaintiff] with prejudice” and held that ‘“[Plaintiff] was deprived of due process when forensic investigators failed to preserve the 13-inch Macbook and potentially destroyed exculpatory evidence.'” Id. Plaintiff subsequently obtained an order sealing the records of his arrest and prosecution. In October 2015, served the Defendants a Tort Claim Notice stating that he would pursue claims including for malicious prosecution.
DISCUSSION
Defendants jointly move for summary judgment on Plaintiffs state and federal malicious prosecution claims on the grounds that (1) there was probable cause for the criminal charges pursued against Plaintiff; (2) Plaintiff cannot show Defendants were responsible for his alleged injuries nor overcome the presumption of prosecutorial independence; (3) the criminal proceedings did not terminate in Plaintiffs favor; and (4) no reasonable juror could find that Defendants intended to deprive Plaintiff of any constitutional right. Alternatively, Defendants Allison, Day, and Anderson argue that they are entitled to qualified immunity because Plaintiff . cannot show that any of them violated constitutional rights that were clearly established. Lastly, the city of Central Point argues that there is no evidence of a Monell violation and Plaintiff failed to present any argument regarding municipal liability in his Amended Complaint and cannot do so now.
I. Defendants are denied summary judgment on Plaintiffs state malicious prosecution claim.
In order for Plaintiff to prove the tort of malicious prosecution in Oregon, he must prove “(1) the institution or continuation of criminal proceedings; (2) by or at the insistence of the defendant; (3) termination of such proceedings in the plaintiffs favor; (4) malice in instituting the proceedings; (5) lack of probable cause for the proceedings; and (6) injury or damage as a result.” Miller v. Columbia City, 282 Or.App. 348, 360 (2016) (citing Rose v. Whitbeck, 277 Or. 791, 795, 562 P.2d 188, reh'g denied and opinion modified, 278 Or. 463, 564 P.2d 671 (1977)).
Under Oregon law, “[a] defendant has probable cause to initiate criminal proceedings if he reasonably believes plaintiff acted in a particular manner and such action indeed constitutes the offense charged.” Gustafson v. Payless Drug Stores NW, Inc., 269 Or. at 356-67. “In the context of a malicious prosecution claim, ‘probable cause' refers to the subjective and objectively reasonable belief that the defendant committed a crime.” Blandino v. Fischel, 179 Or.App. 185, 191, 39 P.3d 258 (2002) (citing Gustafson, 269 Or. at 358). “Whether a defendant had probable cause to initiate a proceeding is a question of law for the court if the facts or inferences are undisputed; if the facts are disputed, then a jury must Decide the facts and the court must instruct the jury what facts constitute probable cause.” Pereira v. Thompson, 230 Or.App. 640, 676, 217 P.3d 236 (2009).
Additionally, “[u]nder both federal and Oregon state law, grand jury indictment constitutes prima facie evidence of probable cause.” Leonetti v. Bray, No. 3:16-CV-00014-AC, 2018 WL 11226238, at *12 (D. Or. Feb. 16, 2018), report and recommendation adopted, (D. Or. Apr. 25, 2018) (citation omitted)); see also Kaley v. United States, 571 U.S. 320, 328 (2014) (“[t]he grand jury gets to say-without any review, oversight, or second-guessing-whether probable cause exists to think that a person committed a crime.”). However, “a plaintiff may rebut a prima facie presumption of probable cause to initiate criminal proceedings ‘by showing that the criminal prosecution was induced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith.'” Puccetti v. Spencer, No. CIV 09-6172-AA, 2010 WL 3604530, at *4 (D. Or. Sept. 14, 2010), affd, 476 Fed.Appx. 658 (9th Cir. 2011) (quoting Awabdy, 368 F.3d at 1067; citing Hryciuk, 213 Or. at 558-59)). The question is whether the plaintiff “is able to prove the allegations in his complaint that the criminal proceedings were initiated on the basis of the defendants' intentional and knowingly false accusations and other malicious conduct.” Awabdy, 368 F.3d at 1067.
a. A genuine issue of material fact exists as to probable cause.
First, defendants argue that they are entitled to summary judgment because there was probable cause to support all charges against Plaintiff. Plaintiff was charged with Felony Computer Crime, Misdemeanor Computer Crime, and Official Misconduct in the First Degree. Under Oregon law, the Felony Computer Crime statute provides:
(3) Any person who knowingly and without authorization alters, damages or destroys any computer, computer system, computer network, or any computer software, program, documentation or data contained in such computer, computer system or computer network, commits computer crime.
(5)(a) A violation of the provisions of subsection (2) or (3) of this section shall be a Class C felony.ORS 164.377. The Misdemeanor Computer Crime statute provides:
(4) Any person who knowingly and without authorization uses, accesses, or attempts to access any computer, computer system, computer network, or any . computer software, program, documentation or data contained in such computer, computer system or computer network, commits computer crime.
(5)... [A] violation of the provisions of subsection (4) of this section shall be . Class A misdemeanor.Id. The Official Misconduct statute provides:
(1) A public servant commits the crime of official misconduct in the first degree if: (a) With intent to obtain a benefit or to harm another: .. . (B) The public servant knowingly performs an act constituting an unauthorized exercise in official duties [.]ORS 162.415. Therefore, to show probable cause for these crimes, the evidence must establish that it was reasonable to believe that Plaintiff knowingly accessed the MacBook Pro without authorization and then altered or destroyed data on the MacBook Pro.
Here, the Court cannot say as a matter of law that there was probable cause to charge Plaintiff with these crimes. The parties strongly contest this issue and present extensive arguments and evidence to support their respective positions. Defendants assert that Plaintiff admitted the elements of all three crimes in his September 2012 interview with OSP Detective Bryan Scott. However, review of the interview transcript in the light most favorable to Plaintiff as the non-moving party shows that Plaintiff may not have understood that he was to maintain ‘complete separation' from all work computers or that he knowingly acted without authorization. For example, When Detective Scott conveyed CPPD's concerns about Plaintiff deleting personal information soon after receiving the leave memorandum, Plaintiff responded, “I didn't even think about it. When I was reading the Admin memo about the don't access, I mean I was thinking like logging into ... email and that sort of thing[.]” Id. at 7. Although Plaintiff responded “yes” when asked if he remembered being given the leave memo and “yes” when he was asked if he remembered the part of the memo that said he was required to maintain complete separation from all City and Task Force computers, Plaintiff has consistently maintained his . position that he did not read the memorandum until the night of May 16, 2012.
Moreover, a jury could find it significant that Plaintiff was permitted to access two different work computers at CPPD on May 16, 2012, shortly after he was given the administrative leave memorandum, in contradiction to memo's instructions. Defendants do not dispute Plaintiffs testimony that, after the meeting in Defendant Allison's office, he was escorted to his desk where he was asked a number of questions about upcoming proceedings and Defendant Allison gave him permission to access his work computer to answer her questions put an out-of-office response on his work email. A reasonable juror could find that it was not objectively reasonable for defendants, OSP, the DOJ, or anyone to believe that Plaintiff knowingly acted without authorization when he deleted personal passwords on the MacBook Pro at his home after CPPD had just permitted him to access multiple work computers as part of the process of being placed on leave. Because there is a genuine issue of fact as whether it was objectively reasonable to believe that Plaintiff acted “knowingly and without authorization” in deleting personal information from the MacBook Pro, summary judgment is not warranted on the issue of probable cause., b. There is sufficient evidence of wrongdoing to rebut the prima facia evidence of probable cause.
While the factual record does not definitely establish probable cause, there is no dispute Plaintiff was indicted by a grand jury in February 2014. A grand jury indictment is prima facie evidence of probable cause. Libby v. City of Medford, No. 1:15-CV-00298-CL, 2017 WL 2219995, at *2 (D. Or. Mar. 17,2017), report and recommendation adopted, 2017 WL 2219980 (D. Or. May 19, 2017) (citing, among other cases, Awabdy, 368 F.3d at 1067; Hryciuk, 213 Or. at 551). As the court remarked in Leonetti, “[e]ven if doubt persisted as to probable cause on the facts alone, Defendants' second basis put forth to support probable cause-the grand jury indictment and arrest warrant-independently supports a presumption of probable cause,” one that Plaintiff must now rebut. 2018 WL 1122623 8, at * 12. .
The burden is on Plaintiff to “overcome the evidence with proof that the indictment or warrant was obtained by false testimony or other improper means.” Id. (citing Awabdy, 368 F.3d at 1067); see also Hryciuk, 213 Or. at 551. The question for the Court is whether a genuine issue of material fact exists regarding defendants' conduct. That is, did defendants induce the initiation of criminal proceedings against Plaintiff by fabricating evidence or other wrongful conduct undertaken in bad faith. 2010 WL 3604530, at *4.
To carry this burden, Plaintiff accuses Defendants of inventing new legal theories, destroying and withholding evidence, misrepresenting the facts, and disregarding official protocols. Am. Comp. 2-3. The Amended Complaint and Response are replete with more specific instances of improper actions allegedly taken by defendants that “repeatedly demonstrated their particular animus toward [Plaintiff],” according to Plaintiff. Id. ¶ 99; see e.g, ¶ 91 (false information submitted with search warrant application); ¶ 92 (false information regarding ownership of MacBook); Resp. 31 (false information regarding verbal notification); Resp. 33 (false information regarding CPPD accessing the MacBook). The court finds it unnecessary to address each of Plaintiff s myriad allegations and focuses instead on his claim regarding Defendants' alleged “massive spoliation and destruction of evidence.” Id. ¶ 82. This . particular allegation of wrongful conduct dates back to the start of the investigation against Plaintiff in May 2012 and finds strong evidentiary support in state court's detailed findings and order dismissing the charges against Plaintiff based on CPPD's failure to preserve exculpatory evidence-namely, the MacBook Pro that was at the center of the charges against Plaintiff. .
Defendants move to strike the state court order under the principles of res judicata. However, the state court order is part of the evidentiary record that is properly considered by this Court in determining whether a genuine issue of material fact exists to preclude summary judgment.
This evidence of wrongdoing is sufficient to rebut the evidence of probable cause.
There is little question that the MacBook Pro was an important piece of evidence in the charges brought against Plaintiff. In the January 2013 DOJ prosecution memo, the DOJ assessed the laptop as follows:
Forensic examination of this 13” laptop revealed that the hard drive's contents had been ‘wiped' or overwritten. Forensic examiners were able to determine that . the laptop was last powered up on May 16, 2012 at 2:48 PM; meaning [Plaintiff] began the process of wiping the computer within minutes of entering his home.
Forensic examination revealed that the computer was powered off the same day at 5:41 PM, within 3 minutes of officers arriving at the house.
The memo also noted that OSP had difficulty determining what, exactly, had been deleted from the laptop:
Numerous attempts were made to recover data from the 13” laptop to no avail. Attempts including accessing, via subpoena, [Plaintiffs] cloud-type accounts. Whatever was on the computer is permanently lost.
The DOJ memo also shows that the DOJ implicated Plaintiff in the “permanently lost” contents of the laptop and that this attribution of blame bolstered their case against him. For instance, the memo identified as a “weakness” the lack of “evidence that the data erased was proprietary city-owned data,” but, as a counterpoint, noted, “this lack of evidence is due to [Plaintiffs] wrongdoing in erasing data.” Id. at 2. In identifying “strengths” in the case, the DOJ also suggested that irretrievability of the “permanently lost” data would raise an inference that Plaintiff deleted something more than personal information because, “[l]ogically, a jury will conclude that [Plaintiff], who was in the midst of an official investigation, had to have known that authorities would see that he wiped the computer - leading to the conclusion that whatever was on that computer was more damning than the act of wiping it clean.” Id.
The DOJ memo further implied that Plaintiff attempted to conceal something more serious than the deletion of personal information in remarking, “[Plaintiffs] explanation that he took the time . (and risk) to wipe a computer to keep his Wife's charitable activities and his passwords from the prying eye of an investigation will not be persuasive.” Id.
However, the evidence suggests that it was actually defendants' wrongdoing that made it impossible for the DOJ to determine what had been deleted from the MacBook Pro. First, “forensic evidence shows that the laptop was inappropriately accessed on May 31, June 1, June 4, and June 7, all in a forensically unsound manner that altered or destroyed its contents.” Am. Comp. ¶ 84-85. Also, during the motions hearing before the state trial court, Defendant Anderson, a certified forensic examiner for Klamath Fall Police Department, testified as to specific methodologies used when handling digital evidence, and the trial court found that “none of those methodologies were employed” when the laptop was with CPPD. Id. at 6. Computer forensic examiner Detective Payne also testified as to how to handle evidence “in a forensically sound manner,” including the use of a “write blocker,” and stated, “no one at the Task Force or CPPD did this.” Id. at 8. Detective Payne further testified that, when he received the MacBook Pro from CPPD, it was “not an ideal situation” because “the equipment had been turned on, there were little reports, and he had to rely on the timelines provided by CPPD.” Id. Payne confirmed that the P List was altered and that it would be difficult to tell what Plaintiff did to the MacBook Pro on May 16, 2012. Id. The trial court referred to the testimony of Joel Brillahart, a certified forensic computer examiner, who determined that “the P List activity was not done by [Plaintiff] and that it was written over” and also testified that it was not possible to “resurrect the computer in the state it was when [Plaintiff] handed it over to CPPD.” Id.
The state trial court also rejected the state's argument that CPPD was “entitled to handle the property the way it did”-i.e., as “administrative actions” that were part of an internal investigation-and held, “[i]t is apparent the exploration of the 13 inch Macbook was done with the purpose of pursuing criminal charges.” Id. at 7. Even more significantly, the court found Plaintiff and counsel “met its burden in showing that the state acted in bad faith,” and remarked:
This is not a case where a lay person negligently turned a computer on; this is a case where trained forensic examiners blatantly disregard all protocols and training and went on a fishing expedition in a forensically unsound manner on the 13 inch Macbook.Id. at 10. The state court concluded that Plaintiff “has shown that the destroyed evidence was material, relevant, irreplaceable and could be favorable to him,” Id. at 9, and dismissed all charges against Plaintiff.
The record contains evidence that supports Plaintiffs allegations of bad faith and destruction of evidence. This evidence is sufficient to rebut the prima facia evidence of probable cause.
c. Defendants played an active role in the criminal proceedings and there is sufficient evidence of wrongdoing to rebut the presumption of prosecutorial independence.
Defendants argue that Plaintiff cannot prove causation because the DOJ “acted independently in making all charging Decisions.” Primarily, “the Decision to file a criminal complaint is presumed to result from an independent determination on the part of the prosecutor, and thus, precludes liability for those who participated in the investigation or filed a report that resulted in the initiation of proceedings.” Awabdy, 368 F.3d at 1067; Borunda v. Richmond, 885 F.2d 1384, 1390 (9th Cir. 1988)). However, “[t]his presumption may be rebutted by showing, for example, that the prosecutor was pressured or caused by the investigating officers to act contrary to his independent judgment or that the investigating officers presented the prosecution with information known by them to be false.” Blankenhorn v. City of Orange, 485 F.3d 463, 482 (9th Cir. 2007) (quoting Smiddy v. Varney, 665 F.2d 261, 267 (9th Cir. 1981)) (internal quotation marks omitted). The presumption may also be overcome with proof that officers “knowingly provided misinformation,... concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings.” Awabdy, 368 F.3d at 1067 (citing Galbraith, 307 F.3d at 1126-27). .
Moreover, under Oregon law, a defendant may be liable for malicious prosecution where they played an active role in instituting the criminal proceeding. Rose, 277 Or. at 795. In Rose, the Oregon Supreme Court found that the investigation of the plaintiff had occurred “at [the defendant's] request,” and held that, “a jury ... could reasonably conclude that [the defendant] did not make full and truthful disclosure to [the investigating police officer], and that this failure to disclose led to [the plaintiffs] subsequent indictment.” Id. at 798. Since Rose, Oregon courts have reiterated that “a person who plays an active role in continuing an unfounded criminal proceeding may be liable for malicious prosecution.” Waldner v. Dow, 128 Or.App. 197,201 (1994); Rogers v. Hill, 281 Or. 491, 499, 576 P.2d 328 (1978).
To survive summary judgment, a plaintiffs rebuttal of prosecutorial independence must consist of more than “conclusory allegations” of misconduct. Child v. City of Portland, 547 F.Supp.2d 1161,1167 (D. Or. 2008) (quoting Sloman v. Tadlock, 21 F.3d 1462, 1474 (9th Cir. 1994)). In Borunda, for example, where the prosecutor relied on police reports that contained “striking omissions” and “conflicting accounts of the incident,” the Ninth Circuit held that the jury could reasonably conclude that police officers “procured the filing of the criminal complaint . by making misrepresentations to the prosecuting attorney.” 885 F.2d at 1390. Similarly, where the prosecutor's charging Decision was based solely on police reports that “omitted crucial information” and an independent witness corroborated the plaintiffs account of the events, there was sufficient evidence to overcome the presumption of prosecutorial independence. Barlow v. Ground, 943 F.2d 1132, 1137 (9th Cir. 1991).
In this case, a reasonable jury could find that the actions of Defendants Allison, Anderson, and Day played an active role in the criminal case against Plaintiff. The evidence shows that in the first week of May 2012, Defendant Allison and CPPD became concerned that Plaintiff had altered the LEAB meeting minutes from the February 2012 meeting to include new language granting him additional authority over time off requests by Task Force members. Henderson Decl., Ex. 101 at 46-47, 53-54, 62-63. Defendant Allison emailed Defendant Day and city colleagues Chris Clayton, Phil Messina, and Barbara Robson on May 15, 2012, to report, “I have met with OSP this morning and they will be conducting the investigation.” Id. Ex. 106 at 4. On May 17, Defendants Allison and Day met twice with OSP to discuss what OSP Detective Scott's notes (labeled, “Moulin Case - Time Line”) refer to as, “Public Documents Issue (Board Minutes)”. Henderson Decl., Ex. 117 at 1. Detective Scott's notes indicate that Jackson County District Attorney (“DA”) Mark Huddleston (“Huddleston”) also attended the meeting on May 17. Id. While Plaintiff was never charged with any crime in connection with the LEAB minutes, these actions of Defendant Allison and Defendant Day make it more plausible that CPPD and Defendants were, as Plaintiff claims, “searching for any other angles they might pursue to develop some type of criminal case against [him].” Am. Comp. ¶ 78.
A reasonable juror could also find that Defendants continued their efforts to build ‘some kind of criminal case' against Plaintiff when they and others convened in Defendant Allison's office on May 31, 2012, and when Defendants each met with OSP detectives and provided them with evidence of criminal activity concerning Plaintiff. At the motions hearing in state court, IT director Richmond and IT specialist Jeff McJunkin testified that they first “examined” the MacBook Pro in Defendant Allison's office on May 31. Henderson Decl., Ex. 141 at 3. As Richmond testified, the. examination of the MacBook Pro on May 31 took place with Defendant Allison's permission and while Defendant Allison, Defendant Day, and Defendant Anderson were all present-despite Defendant Allison's testimony that she never saw anyone access the computer in her presence-testimony the trial court found “not credible.” Id.
Defendant Allison emailed Richmond on June 4, 2012, to request a report regarding the “May 16 activity that took place on ... [the] MacBook Pro,” Id. at 4; Hunter Decl., Ex. 19 at 2, and Defendant Day sent a follow up email on June 5 that asked Richmond, “[d]o you think you could preserve your findings through screenshots or some other means? We need to have something that we can show[.]” Id., Ex. 18 at 1. While Defendants insist these examination activities around the MacBook Pro were “administrative actions” that were part of an internal investigation, the trial court strongly disagreed, stating, “[i]t is apparent that the exploration of the 13 inch MacBook was done with the purpose of pursuing criminal charges' Henderson Decl., Ex. 141 at 7. This particular finding of the trial court makes it especially likely that a jury could find that Defendants played an “active role” in the examination and collection of evidence that would eventually form the basis of criminal charges against Plaintiff. See Waldner, 128 Or.App. at 201. Additionally, defendants met with OSP and DA Huddleston on June 9, 2012, to discuss concerns including “Plaintiffs deletion of data from the MacBook Pro.” They met again on June 11 and June 12 “to obtain information necessary for [OSP] to begin a criminal investigation.” See Henderson Decl., Ex. 115 at 6, Ex. 118 at 1; Ex. 119. DA Huddleston referred Plaintiff s case to the DOJ on June 12, 2021. See id. Ex. 118 at 1; Ex. 119.
Moreover, Plaintiff cites to evidence that indicates the DOJ prosecuted Plaintiff based on misleading information about the MacBook Pro. At the motions hearing in state court, OSP Detective Payne testified that CPPD personnel reported to him that “the laptop had been completely wiped and restored to factory settings” and that “third-party deletion software CCleaner had been run.” Winemiller Decl, Ex. 5 at 8-9. However, Detective Payne further testified that his own forensic examination confirmed neither finding and, in fact, there had been no “factory restore to default” on the laptop nor evidence that CCleaner had been used to “wipe” the computer. Id. Despite this, Detective Payne's September 2012 Incident Report included the CPPD's forensic “findings” and the January 2013 DOJ prosecution memo specifically stated, “[f]orensic examination of this 13” laptop revealed that the hard drive's contents had been ‘wiped' or overwritten [by Plaintiff] ... within minutes of entering his home.” Henderson Decl., Ex. 32 at 1.
The Court acknowledges the Declaration of AAG Campbell, who prosecuted the criminal case against Plaintiff with AAG Wendel, and his testimony that the DOJ made an independent Decision to prosecute Plaintiff. AAG Campbell has offered testimony that he was even aware that CPPD and OSP personnel examined the laptop in a manner that “compromised some of the data on the laptop.” Campbell Decl. 2-3. While this may be true, neither Detective Payne's Incident Report nor the DOJ prosecution memo mentions any missteps on the part of law enforcement, and any issues around ‘compromised' or ‘permanently lost' forensics evidence were attributed solely-and a jury may find, falsely-to what the DOJ described as, Plaintiffs “wrongdoing in erasing data.” See Henderson Decl., Ex. 32 at 2. Therefore, the Court finds there to be ample evidence from which a reasonable jury could conclude that Defendants, through false statements and material omissions in their reports, prevented the prosecutor from exercising independent judgment.
d. The criminal proceedings terminated in Plaintiffs favor.
Defendants argue that Plaintiff cannot show that the criminal proceedings terminated in his favor. The Court disagrees.
Termination of proceedings in favor of the accused is a required element for a malicious prosecution claim. Lacey v. Maricopa Cty., 693 F.3d 896, 919 (9th Cir. 2012). Under Oregon law, a malicious prosecution plaintiff can show favorable termination where criminal charges were dismissed for reasons that ‘“reflect adversely on the merits of the action.'” McGuffin v. Dannels, No. 6:20-CV-01163-MK, 2021 WL 4453106, at *14 (D. Or. July 27, 2021), report and . recommendation adopted, 2021 WL 4449975 (D. Or. Sept. 28, 2021) (quoting Perry v. Rein, 215 Or.App. 113,130 (2007)). As the court explained in Hemstreet v. Duncan, “where a criminal proceeding has been terminated in favor of the accused by judicial action in any way involving the merits or propriety of the proceeding or by a dismissal or discontinuance based on some act chargeable to the complainant as his consent or his withdrawal or abandonment of his prosecution, a foundation in this respect has been laid for an action of malicious prosecution.” No. CV 07-732-ST, 2008 WL 409165, at *8 (D. Or. Feb. 8, 2008), (quoting Gumm v. Heider, 220 Or. 5, 23-24, 348 P.2d 455 (1960) (internal quotation marks omitted)).
Here, the state court's dismissal of the criminal charges was based on concerns regarding the merits or propriety of the proceedings against Plaintiff. The state court dismissed the charges with prejudice, based on its finding that the defendants in this case destroyed potential exculpatory evidence on the MacBook Pro that formed the basis for the charges against Plaintiff. While it is not necessary that criminal charges are dismissed with prejudice to find favorable termination, “[a] dismissal of charges with prejudice is generally consistent with a termination in the accused's favor ... because it is ‘based on some act chargeable to the complainant[.]”' Hemstreet, 2008 WL 409165, at *8 (citing Gumm, 220 Or. at 23). Here, the state court found
[I]t is beyond serious question that those involved in the handling of the 13 inch MacBook, experts in digital and forensic evidence, would recognize that the turning of the computer and the accessing of multiple files would alter not only the stored data but compromise the evidence. Testimony was clear that the P List would have been a roadmap of [Plaintiffs] actions on May 16, 2012, and when CPPD examined his computer, they effectively erased his P List, thereby failing . to preserve exculpatory evidence. .Henderson Decl., Ex. 141 at 7.
Most importantly, the court's dismissal order determined that “bad faith occurred,” which indicates, along with the court's other findings, that dismissal was based on some act chargeable to the complainant. As Plaintiff points out, this is not a case in which dismissal resulted from a settlement or compromise of the underlying charges. Rather, this case involves a state trial court issuing an 11-page order after holding a two-day hearing with numerous witnesses, determining that state actors destroyed exculpatory evidence in bad faith, and Deciding that the improper conduct was serious enough to warrant the dismissal of all charges with prejudice, and not just the suppression of the evidence in question. Therefore, Plaintiff has satisfied the favorable termination element in his malicious prosecution claims. For these reasons, Defendants are denied summary judgment on Plaintiffs state law claim for malicious prosecution.
IL Defendants are denied summary judgment on Plaintiffs Section 1983 malicious prosecution claim; however, no Monell liability found.
A malicious prosecution claim is viable under Section 1983 when “the prosecution is conducted with the intent to deprive a person of equal protection of the laws or is otherwise intended to subject a person to a denial of constitutional rights.” Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985). Section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994). The “threshold inquiry” in a § 1983 suit requires courts to “‘identify the specific constitutional right'” at issue. Manuel v. City of Joliet, 137 S.Ct. 911, 920 (2017) (citing Albright, 510 U.S. at 271).
a. There is sufficient evidence upon which a reasonable jury may find that Plaintiffs due process rights were violated.
Defendants argue that Plaintiffs malicious prosecution claim under Section 1983 must fail because Plaintiff cannot show that his constitutional rights were violated or that Defendants intended to deprive him of any constitutional right. The Court disagrees and finds that there is sufficient evidence upon which a reasonable juror may find that Defendants violated Plaintiffs due process rights for the failure to collect and preserve potentially exculpatory evidence.
To establish a deprivation of due process rights for the failure to collect and preserve potentially exculpatory evidence, the plaintiff must show (1) the evidence was material; and (2) that the failure to collect the evidence was in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); United States v. Martinez-Martinez, 369 F.3d 1076, 1086 (9th Cir. 2004); Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir. 1989). To be “material,” the evidence must “both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984).
Here, a reasonable juror could find Defendants failed to preserve exculpatory evidence because the state trial court order that dismissed the criminal charges against Plaintiff offers compelling evidence of each factor required in a so-called Youngblood violation. See Dinius v. Perdock, No. C 10-3498 MEJ, 2012 WL 1925666, at *8 (N.D. Cal. May 24, 2012) (citing Youngblood, 488 U.S. at 58, and explaining that “Youngblood rights protect [a plaintiff] from the situation where the government obtains evidence and then fails to preserve it even though its exculpatory value was apparent”). As previously discussed, after a two-day evidentiary hearing, the state court explicitly held that CPPD personnel searched the MacBook Pro “with the purpose of pursuing criminal charges,” failed to follow proper methodologies for preserving forensic evidence, and, consequently, destroyed evidence on the computer that was “material, relevant, irreplaceable and could be favorable to him in establishing his defense that he didn't act without authorization.” Id. at 9. It is undisputed that the trial court found that “bad faith occurred.” Id.
Despite Defendants' insistence there can be no Youngblood violation here because “there was no clear reason to believe [the laptop] would be evidence of a crime” at the time that it was accessed by CPPD, a reasonable juror could find otherwise based on the extensive Youngblood analysis conducted by the state court and its unqualified conclusion that “[Plaintiff] was deprived • of due process when forensic investigators failed to preserve the 13 inch MacBook and destroyed potentially exculpatory evidence.” Id. at 5. Summary judgment on this claim is therefore not warranted.
b. The record does not support Plaintiffs additional constitutional claims.
The Court agrees with Defendants that there is no basis to support finding that Defendants violated Plaintiffs rights to free speech, political participation and equal protection of the laws, due process rights as a public employee, the protections guaranteed to public employees, or the right to be free from warrantless searches. While the Amended Complaint, repeatedly alleges that the investigation against Plaintiff was “politically motivated,” that bare allegation does not suffice to support such a claim, and Plaintiff has presented no evidence on which a reasonable jury could find Defendants liable for any constitutional violation related to free speech, political participation, or equal protection. Plaintiff s response to Defendants' motion for summary judgment also drops these claims entirely. Plaintiff complains that Defendants failed to notify him that he was under criminal investigation and failed to keep him apprised of updates regarding the investigation, but the subjects of crimination investigations have no unabridged constitutional right to be informed that they are the subject of criminal investigation. Moreover, there is no evidence that Plaintiff was subject to questioning by . Defendants or anyone else while he was a public employee, and Plaintiff does not allege that such conduct occurred. When Plaintiff was interviewed by OSP in September 2012, he was no longer a state employee and, therefore, was not presented with the ‘choice' “between selfincrimination or job forfeiture.” Garrity v. New Jersey, 385 U.S. 493, 496 (1967). Finally, CCP maintained a policy that notified Plaintiff that there was no expectation of privacy on his state-owned computers or devices. Therefore, based on the plain language of CPPD's computer and internet use policy, Plaintiff cannot show that he had an objectively reasonable expectation of privacy in the contents of his work emails and equipment.
Plaintiffs theory of deliberate fabrication of evidence under Section 1983 fails as well. To prevail on a claim of deliberate fabrication under section 1983, a plaintiff must prove “(1) the defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the plaintiffs deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017) (citing Costanich v. Dep't of Soc. & Health Servs., 627 F.3d 1101,1111 (9th Cir. 2010). To establish causation, a plaintiff “must raise a triable issue that the fabricated evidence was the cause in fact and proximate cause of his injury.” Caldwell v. City & Cty. of San Francisco, 889 F.3d 1105, 1115 (9th Cir. 2018). Here, Plaintiff specifically alleges that the copy of the administrative leave memo that was produced in the criminal case against him contained the fabricated signatures of Defendant Allison and city manager Clayton. Plaintiff alleges that neither person signed the memo on May 16, 2012, but that sometime after that date, Defendant Allison and city manager
Clayton signed and backdated a copy of the memorandum. The undisputed evidence shows there was an effort to locate a signed copy of the memorandum in 2014 and that a signed copy was produced by CPPD for the first time in August 2014, more than two years after it had been purportedly signed and many months after it was first requested. However, even if a jury could find that the leave memo had been backdated, Plaintiff has failed to show what injury he suffered from this alleged act. As the Ninth Circuit stated in Caldwell, where the court determines there is a triable issue regarding fabricated evidence-as it did in Caldwell-the “[Plaintiff] must still come forward with a showing that the fabrication caused him some harm.” Caldwell v. City & Cty. of San Francisco, 889 F.3d 1105,1115 (9th Cir. 20.18). Plaintiff has not and cannot allege that the DOJ “relied on” the allegedly fabricated memo in Deciding to either investigate or charge Plaintiff because the DOJ made its Decision to prosecute Plaintiff almost a year before the signed copy of the memo was found. AAG Wendel formally notified Plaintiffs counsel of the criminal charges against Plaintiff in November 2013 when neither the DOJ nor OSP were in possession of a signed copy of the memo. See Henderson Decl., Ex. 134. While the DOJ clearly sought a signed copy of the memo in early 2014, its inability to track down a signed copy was no impediment to bringing Plaintiffs criminal case before a grand jury in February 2014, and there is no question that the grand jury did not consider, let alone rely on, the allegedly fabricated memo when it indicted Plaintiff because Central Point did not produce it until six months later. Therefore, no reasonable juror could find that the alleged falsified memo was a “crucial piece of evidence” against Plaintiff or that the DOJ “relied on” false evidence submitted by Defendants when it filed criminal charges against Plaintiff.
Therefore, Plaintiffs Section 1983 malicious prosecution claim should be limited in scope to the issue of whether Defendants deprived Plaintiff of his constitutional due process rights for the failure to collect and preserve potentially exculpatory evidence.
c. The Court finds no Monell liability against the City of Central Point.
Defendants argue that Defendant city of Central Point is entitled to summary judgment . on Plaintiffs Section 1983 claim because Plaintiff failed to present any legal argument regarding municipal liability in the Amended Complaint and improperly attempts to argue for the very first time in his response to the motion for summary judgment that the City can be liable under the theory that Chief Allison was a final policymaker throughout the investigation against Plaintiff.
A helpful summary of municipal liability was recently presented by the Court in White v. Taylor by & through City of Turner Police Dep't, No. 6:18-CV-00550-MK, 2020 WL 5649629, at *12 (D. Or. July 2, 2020), report and recommendation adopted, 2020 WL 5649725 (D. Or. Sept. 22, 2020): '
There are three methods by which a plaintiff may establish municipal liability under Monell. First, a local government may be liable where the “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflict[s] the injury.” Rodriguez v. City of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018) (quoting Monell, 436 U.S. at 694). Second, a local government can fail to train . employees in a manner that amounts to “deliberate indifference” to a constitutional right, such that “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [government entity] can reasonably be said to have been deliberately indifferent to the need.” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). Third, a local government may be held liable if “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 802-03 (citation omitted).
A careful review of the Amended Complaint reveals that Plaintiff asserts none of these theories of municipal liability, nor does Plaintiff present any argument regarding Defendant Allison's policymaking authority. Plaintiff “may not effectively amend [his] Complaint by raising a new theory ... in [his] response to a motion for summary judgment.” La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010).. As the Ninth Circuit explained in Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000), to allow a plaintiff to proceed with a previous unpled legal theory after the close of discovery would prejudice the defendant who would not be “on notice of the evidence it needs to adduce in order to defend against the plaintiff's allegations.” Id. at 1292. “Simply put, summary judgment is not a procedural second chance to flesh out inadequate pleadings.” Wasco Products, Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006); citing City of Lake Forest, 624 F.3d at 1089); Self v. Columbia Cty., No. 3:20-CV-00584-BR, 2021 WL 2875659, at *10 (D. Or. July 8, 2021) (rejecting Monell claim based upon previously unalleged final policymaking official and ratification theories); White, 2020 WL 5649629, at *12 (rejecting new theories of Monell liability raised for the first time in opposition to motion for Summary judgment).
Because Plaintiff presented no theory of municipal liability in the Amended Complaint, Defendant City of Central Point is entitled to summary judgment on Plaintiff's Section 1983 malicious prosecution claim.
d. Defendants are denied qualified immunity.
When determining whether a defendant is entitled to qualified immunity, “the court must Decide whether the plaintiff has shown that a constitutional or statutory right has been violated . and whether the right at issue was ‘clearly established' at the time of the alleged violation.” Elmore v. Jackson Cty., No. 1:12-CV-1332-CL, 2014 WL 61318, at *2 (D. Or. Jan. 7, 2014) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The Supreme Court has held that lower courts may “exercise their sound discretion in Deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). The key inquiry is whether the official had “fair warning” that the conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002).
Here, Defendants base their qualified immunity argument only on the first prong of a qualified immunity analysis, i.e., proof that a constitutional right has been violated. The Court has already determined that there is sufficient evidence upon which a reasonable juror may find that Defendants violated Plaintiff's due process rights for the failure to collect and preserve potentially exculpatory evidence. Therefore, the only question is whether that right was “clearly established” at the time of the challenged conduct.
For a constitutional right to be clearly established, “it must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle, 556 U.S. at 664. Defendants do not argue that this right was not clearly established at the time Defendants participated in the handling of the MacBook Pro, and there is no real dispute that the state has a duty to disclose evidence that is material to a criminal defendant's guilt or punishment and to preserve such evidence. See Brady v. Maryland, 373 U.S. 83, 87 (1963); Trombetta, 467 U.S. at 480-81. Defendants were therefore on notice that a bad faith failure to preserve potentially exculpatory evidence that is unavailable by other means was a denial of Plaintiff s right to due process. Youngblood, 488 U.S. 51 (1988); United States v. Del Toro-Barboza, 673 F.3d 1136,1149 (9th Cir. 2012). Therefore, Defendants are denied qualified immunity.
RECOMMENDATION
For the reasons stated above, Defendants' motion for summary judgment (#119) should be DENIED in part and GRANTED in part.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is filed. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See Fed.R.Civ.P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, F.2d 1153 (9th Cir. 1991).