73 F.3d 232 (9th Cir. 1995), 93-35212, Allen v. City of Portland

Docket Nº:93-35212.
Citation:73 F.3d 232
Party Name:D.A.R. 16,814 Joyce Lynne ALLEN, Plaintiff-Appellant, v. CITY OF PORTLAND; Richard D. Walker, Chief of Police; George E. Fort, Police Officer, Defendants-Appellees.
Case Date:December 19, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 232

73 F.3d 232 (9th Cir. 1995)

D.A.R. 16,814

Joyce Lynne ALLEN, Plaintiff-Appellant,


CITY OF PORTLAND; Richard D. Walker, Chief of Police;

George E. Fort, Police Officer, Defendants-Appellees.

No. 93-35212.

United States Court of Appeals, Ninth Circuit

December 19, 1995

Submitted Aug. 22, 1995.[*]

As Amended Jan. 17, 1996.

Page 233

Joyce Lynne Allen, Portland, Oregon, Pro Se.

Harry Auerbach, Deputy City Attorney, Portland, Oregon, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before: CHOY, SNEED, and FERGUSON, Circuit Judges.


FERGUSON, Circuit Judge:

The plaintiff appeals pro se the district court's judgment for the defendants and the denial of her motion for a new trial. The plaintiff brought suit under 42 U.S.C. Sec. 1983 alleging that the defendants violated her civil rights when they arrested her without probable cause, subjected her to excessive force, and deprived her of liberty without due process of law. The plaintiff also asserted state common law claims for false arrest, battery, and negligence. We hold as a matter of law

Page 234

that the plaintiff was arrested without probable cause in violation of her Fourth Amendment rights. The judgment of the district court is reversed and remanded.


On September 14, 1989, Joyce Allen, her husband Dwight Allen, and their 10-year-old son, Michael Allen, had dinner at John's Meatmarket in Portland, Oregon. Dwight intended to pay for part of the meal with an Entertainment card, which offered a half-price discount. Dwight claims that he told the waiter before the family ordered dinner, that he planned to use the Entertainment card. The restaurant manager, Lanny Blanks, claims that Dwight never mentioned the Entertainment card before the family ordered.

After dinner, when the bill arrived, Dwight presented the waiter with the Entertainment card and the waiter refused to accept the card. Dwight asked to speak to the restaurant manager. Blanks, the restaurant manager, informed the Allen family that they could not use the discount coupon because Joyce had one meal and as Dwight and his son had split a meal, the coupon could not be used when meals were shared. Dwight and Blanks then argued about the restrictions on the use of the coupon which were written in the Entertainment book. Dwight left fifteen dollars and the discount coupon to pay for the twenty-five dollar meal. The Allen family then left the restaurant.

Blanks called 911 and reported a theft. Despite the fact that the dispute over the bill was between Blanks and Dwight, Blanks reported to the dispatcher that there were three suspects and gave descriptions of Joyce, Dwight, and their son. Officer George Fort and Officer Darrell Miller responded to the call. At trial, Officer Fort testified to what Blanks and a waitress at the restaurant told the officers about the dispute:

And they [Blanks and the waitress] quickly related to us that the folks that had been called about had left without paying their full price, the full price on a meal, or something mentioned, I recall, about a coupon being used invalid, incorrectly. And there was a balance of money owed. I don't recall if I knew, at that time, the exact amount, but it did not seem to be a very large amount.

Officer Fort further testified that the restaurant manager and the waitress assisted the officers in locating Joyce and her son who had entered a nearby restaurant, Rose's Restaurant.

Officer Fort testified that he entered Rose's Restaurant and saw Joyce and her son going into the women's restroom. Officer Fort entered the women's restroom, and after a brief discussion told Joyce that she was under arrest. At trial Officer Fort relayed the following conversation that took place in the restroom:

And then she [Joyce] said, "I haven't done anything wrong." I said, "Well, according to the restaurant manager, you have. You have been involved in a theft at the Meatmarket. You didn't pay all that was owed."

There was a short discussion then about she acknowledged the fact that they had been there, that there was a dispute over the cost of the meal, and that they had left....

I said to her something like, "You are under arrest for theft, and you are going to have to come outside with me."

Joyce refused to leave the restroom. Officer Fort took Joyce's arm and told her that she could either walk out with him or he would handcuff her. Joyce did not want Officer Fort to touch her. Officer Fort testified that he attempted to take Joyce's arm and lead her out of Rose's Restaurant, but Joyce jerked her arm away from him. When Officer Fort, Officer Miller, and Joyce finally got outside the restaurant a crowd had gathered. By this time, Joyce was very upset about the arrest and was shouting at the officers.

Officer Fort testified that once they were outside the restaurant he reminded Joyce that she was under arrest. After asking where her husband was, Fort told Joyce he wanted her to sit in his car so that he could continue with his investigation. According to...

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