Dunlap v. City of Sandy

1

KATHLEEN DUNLAP, personal representative of the Estate of James Ross Dunlap, Jr., deceased, and KATHLEEN DUNLAP, individually, Plaintiffs, v. CITY OF SANDY and LUKE A. HODGES, Defendants.

No. 3:17-cv-01749-YY

United States District Court, D. Oregon, Portland Division

March 8, 2023

FINDINGS AND RECOMMENDATIONS

YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE

FINDINGS

Defendant City of Sandy has filed a motion for summary judgment. ECF 66. The motion should be denied because there are disputed issues of material fact as to what plaintiff Kathleen Dunlap told Officer Luke Hodges about the incident with her husband on January 9, 2016. These factual questions are critical to determining whether Officer Hodges had probable cause to arrest plaintiff's husband but failed to do so as required by O.R.S. 133.055(2)(a).

I. Background and Procedural History

Plaintiff filed this suit, individually and on behalf of the estate of her late husband, after her husband, who suffered from bipolar disorder, was found deceased in his vehicle with a selfinflicted gunshot wound to his chest on January 11, 2016. First Am. Compl. ¶ 29, ECF 32. In her First Amended Complaint, plaintiff alleges that, two days earlier, she and her husband were involved in a domestic dispute that generated phone calls to the police dispatch and emergency hotlines. Id. ¶¶ 16-25. Plaintiff claims that in response to one of her phone calls Officer Hodges from the City of Sandy Police Department called her and the two talked about what had happened between her and her husband that day. Id. ¶ 17. Plaintiff alleges that, over the course of different phone conversations, Officer Hodges agreed to meet plaintiff at her home to retrieve some of her belongings, though the parties also dispute several other details about what plaintiff and Officer Hodges discussed during these calls. Id. ¶¶ 17-21. There is no dispute, however, that the arranged meet-up did not happen. Id. ¶ 23-26. Plaintiff claims she made additional phone calls to police dispatch, and she also spoke with Officer Hodges' partner about the situation. Id. ¶¶ 26-27. Plaintiff's husband was never arrested. See id. ¶ 29. Plaintiff alleges that both Officer Hodges and his partner told her that the officers would not get involved because it “was the policy of the Sandy Police Department not to get involved when dealing with mentally ill individuals.” Id. ¶¶ 17, 27.

In the original and amended complaints, plaintiff and the estate alleged claims under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), 42 U.S.C. § 1983 for violations of substantive and procedural due process, and Oregon law for negligence and wrongful death. Compl., ECF 1; First Am Compl. ¶¶ 30-61, ECF 32. Defendant filed motions to dismiss for failure to state a claim, the motions were granted, and all of the claims were dismissed. ECF 45. Plaintiff and the estate appealed, and the Ninth Circuit affirmed the dismissal of all of the claims asserted by the estate and most of the claims asserted by plaintiff, except it found “[t]he district court incorrectly dismissed Dunlap's associational ADA and RA claims.” Dunlap v. City of Sandy, 846 Fed.Appx. 511, 512-13 (9th Cir. 2021). Specifically, the Ninth Circuit held that plaintiff had sufficiently alleged associational ADA and RA claims based on “her husband's disability and her association with him,” and that plaintiff was “plausibly denied the benefit of a covered service-namely, the arrest of her husband on January 9, 2016, as mandated by Oregon law-because [defendant's] noninvolvement policy instructs police not to intervene in mental health crises.” Id. at 513.

The case was returned to this court via Ninth Circuit mandate on April 23, 2021. ECF 55. Defendants have now moved for summary judgment, primarily on the basis that the responding officer did not have probable cause to arrest plaintiff's husband in January of 2016, and thus the mandatory arrest statute at O.R.S. 133.055(2)(a) did not apply and does not provide a basis for recovery on plaintiff's associational ADA and RA claims. Mot. Summ. J. 9-17, ECF 66.

II. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.' ” Id. at 324 (citing Fed.R.Civ.P. 56(e)).

The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

Defendant's present motion for summary judgment asserts that Officer Hodges lacked probable cause to arrest plaintiff's husband on January 9, 2020, and thus plaintiff did not have a legal right under O.R.S. 133.055(2)(a) to have her husband arrested. Mot. Summ. J. 9, ECF 66.

III. Discussion

Although the Ninth Circuit has not directly addressed the issue, “district courts throughout the circuit appear to be in consensus that a plaintiff may bring an associational discrimination claim . . . only if the plaintiff has suffered an injury independent of the injury suffered by his or her disabled associate.” Kim v. Beaverton Sch. Dist. 48J, No. 3:20-CV-2025-SI, 2021 WL 2188238, at *7 (D. Or. May 28, 2021) (citing Glass v. Hillsboro Sch. Dist. 1J, 142 F.Supp.2d 1286, 1288 (D. Or. 2001); Cortez v. City of Porterville, 5 F.Supp.3d 1160, 1164-66 & n.2 (E.D. Cal. 2014)); see also Vinson v. Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir. 2002) (analyzing Title II ADA and § 504 RA claims together). Here, the Ninth Circuit found that plaintiff's independent injury arises from an Oregon statute, O.R.S. 133.055(2)(a), which provides:

[W]hen a peace officer responds to an incident of domestic disturbance and has probable cause . . . to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant.

O.R.S. 133.055(2)(a); see Dunlap, 846 Fed.Appx. at 512. The Ninth Circuit recognized that this mandatory arrest statute “confers a legal right to victims of domestic disturbance to have their alleged assailants arrested.” Dunlap, 846 Fed.Appx. at 513 (citing Nearing v. Weaver, 670 P.2d 137, 140, 142-43 (1983)).

The Ninth Circuit further held that the officer's “refusal” to arrest plaintiff's mentally disabled husband “plausibly denied [her] a protected benefit.” Id. Specifically, the Ninth Circuit held that because defendant's alleged policy of “noninvolvement” when individuals are suffering from a mental health crisis “explicitly disallows the provision of police services only when individuals are experiencing a mental health crisis, it can be reasonably inferred to be facially discriminatory toward the mentally disabled.” Id.

Given this, it is certainly plausible that the City knew that it was substantially likely that its policy would harm the right of mentally disabled individuals, or those associated with them, to have their domestic abuse assailants arrested by City police pursuant to § 133.055. The policy plausibly constitutes a failure to act upon the likelihood that mentally disabled individuals, or those associated with them, would be denied the benefit conferred by § 133.055, as it is the policy itself that requires City police to ignore the statute's clear command.

Id. (citing Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)).

Defendant argues that Officer Hodges lacked probable cause to arrest plaintiff's husband as a result of the January 9, 2016 incident, and thus did not have a duty to arrest him under O.R.S. 133.055(2)(a). Mot. Summ. J. 9, ECF 66.

A. Whether O.R.S. 133.055(2)(a) Provides an Independent Basis for Arrest

As a threshold matter, it is necessary to resolve whether this court must look to O.R.S. 133.055(2)(a) or the menacing statute, O.R.S. 163.190, in determining whether probable cause exists. The parties dispute whether the mandatory arrest provision of O.R.S. 133.055(2)(a) provides an independent basis for making an arrest, or whether the arrest must be supported by probable cause to believe that plaintiff's husband committed a separate crime specifically menacing as defined by O.R.S. 163.190. See Mot. Summ. J. 10-11, ECF 66; Resp. 21-22, ECF 77. O.R.S. 163.190 provides that a “person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.” O.R.S. 133.055(2)(a), by contrast, provides that “when a peace officer responds to an incident of domestic disturbance and has probable cause to believe that an assault has occurred between family or household members, . . . or to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant.” The relevant...