Biberdorf v. Oregon

243 F.Supp.2d 1145

Lowell C. BIBERDORF, Plaintiff, v. State of OREGON and Multnomah County, Defendants and Third-Party Plaintiffs, v. Donald J. Watt and Randall Vogt, Third-Party Defendants.

No. CIV.00-949-BR.

United States District Court, D. Oregon.

December 2, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael E. Rose, Steenson, Schuman, Tewksbury & Rose, Portland, OR, for Plaintiff.

Hardy Myers, Attorney General, John Clinton Geil, Assistant Attorney General, Department of Justice, Portland, OR, for State of Oregon.

Thomas Sponsler, County Attorney, Susan M. Dunaway, Assistant County Attorney, Office of the Multnomah County Attorney, Portland, OR, for Multnomah County.

Paul Silver, Nikola L. Jones, Lindsay, Hart, Neil & Weigler LLP, Portland, OR, for Donald J. Watt and Randall

OPINION AND ORDER

BROWN, District Judge.

This matter comes before the Court on Plaintiff Lowell C. Biberdorf's Second Motion for Partial Summary Judgment (# 153), Defendant and Third-Party Plaintiff Multnomah County's Motion for Summary Judgment (# 160), Defendant and Third-Party Plaintiff State of Oregon's Motion for Summary Judgment (# 194), and the Motion for Summary Judgment (# 124) filed by Third-Party Defendants Donald J. Watt and Randall Vogt. The Court heard oral argument on these Motions on September 4, 2002; November 5, 2002; and November 22, 2002.

For the reasons that follow, the Court DENIES Biberdorfs Second Motion for Partial Summary Judgment, GRANTS IN PART and DENIES IN PART Multnomah County's Motion for Summary Judgment, DENIES State of Oregon's Motion for Summary Judgment, and GRANTS IN PART and DENIES IN PART the Motion for Summary Judgment filed by Watt and Vogt.

STANDARDS Fed.R.Civ.P. 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001). In response to a properly-supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e).

An issue of fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Guidroz-Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir.2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). All reasonable inferences from the facts in the record must be drawn in favor of the nonmoving party. Hensley v. Northwest Permanente P.C. Ret. Plan & Trust, 258 F.3d 986, 999 (9th Cir.2001), cert, denied, 534 U.S. 1082, 122 S.Ct. 815, 151 L.Ed.2d 699 (2002). A mere disagreement about a material issue of fact, however, does not preclude summary judgment. Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir.1990). When the nonmoving party's claims are factually implausible, that party must come forward with more persuasive evidence than otherwise would be required. Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1147 (9th Cir.1998) (citation omitted).

The substantive law governing a claim or a defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Arpin, 261 F.3d at 919.

BACKGROUND

In 1996 Multnomah County Grand Juries charged Biberdorf with the same act of burglary in two successive prosecutions. Biberdorf was in custody while awaiting trial in each case. For part of the same time, he also was in custody on unrelated charges. After the first case was dismissed, Biberdorf pled no contest to Burglary in the First Degree in the second case, and the court sentenced him to an 18-month prison term. County and/or state authorities calculated and credited against Biberdorf's prison sentence only some of the pretrial time Biberdorf was in custody on the burglary charge in the second case and none of the time Biberdorf was in custody on the burglary charge in the first case. As a result, he did not receive all of the time-served credit to which he was entitled under state law, and authorities detained him in prison for several weeks beyond the date he was entitled to be released.

FACTS

For purposes of the pending Motions, the following facts are undisputed except as noted:

On October 1, 1996, the District Attorney of Multnomah County, Oregon, filed an Information in Multnomah County Circuit Court, No. 9609-37252 ("first case"), charging Biberdorf with multiple counts of murder and related crimes. The court issued a warrant for Biberdorfs arrest. In the course of investigating a residential burglary the next day, October 2, 1996, police encountered Biberdorf, arrested him, and served the warrant. On October 10, 1996, the Grand Jury indicted Biberdorf in the first case for the murder and related crimes originally charged in the Information and for three counts of Burglary in the First Degree, one of which charged Biberdorf with the residential burglary that occurred October 2, 1996. The court arraigned Biberdorf on this Indictment the next day and detained Biberdorf in custody.¹

On December 20, 1996, the Grand Jury returned an Indictment in Multnomah County Circuit Court, No. 9612-39055 ("second case"), that charged Biberdorf with the same October 2, 1996, residential burglary, but the Indictment did not charge Biberdorf with the murder and related crimes as in the first case.

At a proceeding on December 24, 1996, the court dismissed the first case without prejudice, arraigned Biberdorf on the second case, and continued Biberdorf in custody on the burglary charge. The court entered an amended order dismissing the first case and explicitly referencing the new case number as follows: "Defendant re-indicted and arraigned on C 9612-39055—Burglary I." Multnomah County Jail Detention Records Technicians received this order. The Oregon Judicial Information Network (OJIN) database file for the first case also contained a crossreference entry to the second case number. Multnomah County Jail Detention Records Technicians, however, did not link the two cases for purposes of tracking the time Biberdorf was in custody for the October 2, 1996, burglary charge.

On December 26, 1996, the court appointed Watt to represent Biberdorf in the second case pursuant to the terms of the Indigent Defense Legal Services Contract between the Oregon State Court Administrator and the law firm that employs Watt. Vogt is a member of the same law firm.

On January 8, 1997, the Grand Jury issued a Re-Indictment in the second case adding another count of residential burglary to the October 2, 1996, burglary count. The court dismissed the original Indictment in the second case and, on January 9, 1997, arraigned Biberdorf on the Re-Indictment and continued him in custody on the two charged burglaries. When the prosecutor was unable to proceed to trial on March 5, 1997, the court dismissed the second case without prejudice. Although the court released Biberdorf from custody on the two burglary charges as of March 5, 1997, the court, nonetheless, detained him for unrelated probation sanctions until June 18,1997.

In the meantime, on April 23, 1997, the Grand Jury issued another Re-Indictment in the second case again charging Biberdorf with the same two residential burglary counts that were dismissed March 5, 1997. The court arraigned Biberdorf on this subsequent Re-Indictment in the second case on April 30, 1997. Biberdorf completed his custody sanctions on the unrelated probation matters, and he returned to custody status on the pending burglary charges on June 18,1997.

On July 8, 1997, Biberdorf entered a plea of no contest to Burglary in the First Degree, Count 2 of the second case, for the October 2, 1996, residential burglary. Although Watt knew Biberdorf had been held in custody on this charge under both Multnomah County cases, Watt did not ask the court to cross-reference the first case number on the sentencing order issued in the second case. Both Watt and the prosecutor, however, informed the court that Biberdorf had been held in custody under both cases and multiple indictments for the October 2, 1996, burglary charge of conviction. In addition, Watt stated on the record that Biberdorf had been in custody "since October 2nd of 1996" for various reasons, including the burglary charge of conviction, and that Biberdorf had been in custody "continuously 291 days for various reasons." Watt asked the court "to at least give credit for the amount of time that ... [Biberdorf] has served on this charge awaiting trial." The prosecutor told the court that he assumed Biberdorf would receive credit "for the time that he's been in since October 2nd." The sentencing judge commented such credit would be "automatic unless there's a statement to the contrary."

The court accepted Biberdorfs no-contest plea, sentenced him to an 18-month state prison term without any express statement precluding credit for time served, and dismissed the other burglary charge. Although the Judgment of Conviction in the second case made no explicit reference to the first case number and the time Biberdorf served in county custody for the burglary charge of conviction thereunder, nonetheless, it provided "defendant may be considered for any form of ... reduction in sentence ... authorized by law and for which defendant is otherwise eligible."

The trial court closed the second case on July 10, 1997. Watt also closed his file at that time. Watt contends, and Multnomah County and State of Oregon deny, that Watt's representation of Biberdorf concluded upon entry of the Judgment of Conviction.

Pursuant to Or.Rev.Stat. § 137.320(1), the Sheriff of Multnomah County was required to deliver Biberdorf to the Oregon Department...