Cannon v. Polk County/Polk Cnty. Sheriff, Case No. 3:10–cv–00224–HA.

• Decision Date: 18 December 2014
• Docket Number: Case No. 3:10–cv–00224–HA.
• Court: U.S. District Court — District of Oregon
• Parties: Philip Scott CANNON, Mathias Cannon, and Philip Scott Cannon, on behalf of his minor child, QC, Plaintiffs, v. POLK COUNTY/POLK COUNTY SHERIFF, City of Dallas/Dallas Police Department, Burnette Krauger, Kerry Taylor, Michael Oja, John Wallace, Michael Holsapple, Paul Box, Ray Steele, Bob Wolfe, Chad Woods, Defendants.

68 F.Supp.3d 1267

Philip Scott CANNON, Mathias Cannon, and Philip Scott Cannon, on behalf of his minor child, QC, Plaintiffs

v.POLK COUNTY/POLK COUNTY SHERIFF, City of Dallas/Dallas Police Department, Burnette Krauger, Kerry Taylor, Michael Oja, John Wallace, Michael Holsapple, Paul Box, Ray Steele, Bob Wolfe, Chad Woods, Defendants.

Case No. 3:10–cv–00224–HA.

United States District Court, D. Oregon.

Signed Dec. 18, 2014.

Kevin T. Lafky, Lafky & Lafky, Salem, OR, for Plaintiffs.

OPINION AND ORDER

HAGGERTY, District Judge:

Plaintiffs, Phillip Scott Cannon, Mathias Cannon, and Phillip Scott Cannon on behalf of his minor child, QC, filed this law suit, alleging violations of 42 U.S.C. § 1983against Polk County Sheriff Robert Wolfe, former Polk County Sheriff Ray Steele, Polk County Sheriff's Deputy Michael Holsapple, retired Polk County Deputies Burnette Krauger and Paul Box, City of Dallas Police Officer John Wallace, and former City of Dallas Reserve Officer Chad Woods in connection with their investigation of plaintiff Phillip Scott Cannon¹ for a triple murder in 1998. Plaintiffs allege that the manner in which these individual defendants conducted their investigation and prosecution violated plaintiffs' constitutional rights. Plaintiffs also allege state law claims against Polk County and the City of Dallas for malicious prosecution and abuse of process.² In addition to these claims against the Polk County/City of Dallas defendants, plaintiffs allege that Oregon Department of Justice Special Agent Kerry Taylor and Oregon State Police Officer Michael Oja (“State defendants”) violated 42 U.S.C. § 1983 through their role in the investigation. On October 30, 2014, the State defendants and the Polk County/City of Dallas defendants separately filed Motions for Summary Judgement [201], [203]. Based on the following analysis, both motions are granted.

FACTUAL BACKGROUND

In November 1998, Jason Kinser, Suzan Osborne, and Celesta Graves were living in the mobile home located on the property of Bimla Boyd and Charles Boyd in Polk County, Oregon, The Boyds lived in a house overlooking the mobile home on the same property.

On November 23, 1998, Kinser, Osborne, and Graves experienced plumbing problems at the mobile home and were without running water. Graves called plaintiff, who was a friend, to come to the trailer to estimate the cost of plumbing repairs. Plaintiff responded to the mobile home, driving a maroon van.

Bimla Boyd said that that afternoon she had made several car trips up and down her long driveway, which she shared with the mobile home. She had noticed the maroon van parked outside the mobile home. On one trip up the driveway, Boyd's car was stopped by a tree branch that lay on the ground, blocking her way. As she was stopped, Jeremy Olsen and Larry Weaver pulled into the driveway behind her in a yellow pickup truck. Boyd was not familiar with Olsen and Weaver, but she lent them her phone to speak with the mobile home tenants. Olsen and Weaver were able to speak with Osborne, but the tenants did not offer to help remove the branch. Olsen and Weaver cleared the branch from the driveway on their own. Boyd drove up to her house and the two men followed her as far as the mobile home.

Before Olsen and Weaver arrived at the mobile home, plaintiff claims that he had examined the plumbing problem and had spoken with Graves and Osborne. He states that he observed Kinser speaking tensely with a Hispanic man inside the mobile home, and shortly thereafter Osborne advised plaintiff to leave. Plaintiff was packing his tools in his van when Olsen and Weaver arrived. Olsen and Weaver stated that they were delivering water to Kinser. According to Olsen and Weaver, plaintiff acted strangely and advised them that they should not go into the mobile home because Kinser was upset. The parties' accounts of what happened during this encounter differ, but, most significantly, Olsen and Weaver eventually acknowledged that plaintiff did not want them to enter the mobile home, and they left the property. Plaintiff claims that he finished loading his van and also left the property.

Later that afternoon, police received a emergency call from Boyd. Police arrived to Boyd's property and discovered the mobile home partially on fire, because ignited logs from the wood stove were on the floor. Kinser lay dead on the kitchen floor, and the bodies of Osborne and Graves lay under the mobile home. Each of the victims had suffered a gun shot wound to the back of the head from close range.

The Polk County Major Crimes Team was activated to investigate the murders. Polk County Deputy Holsapple was assigned as the lead investigator, and Deputy Krauger was assigned to lead a team in the collection of evidence. Holsapple assigned Deputy Box and Deputy Krauger to speak with Boyd and her neighbors. Boyd stated that she observed smoke coming from the mobile home as she left her house to pick up her children that afternoon. Because the tenants were not permitted to use the wood stove, she investigated. Boyd claimed. that, upon entering the mobile home, she observed Kinser on the kitchen floor, grasping for air, and she called the police.

On the following day, November 24, 1998, the Major Crimes Team interviewed several individuals that they suspected may have had information about the murders. Law enforcement was familiar with Kinser due to his involvement in methamphetamine manufacture and distribution. Weaver and Olson were interviewed and they described their encounter with plaintiff as they attempted to deliver water to the mobile home. Sarah Miller, plaintiff's girlfriend, explained that plaintiff returned home at 4:00 pm on the day of the murders. Steven Brobston, an inmate at Marion County Jail and a known drug trafficker, reported that he entrusted plaintiff with sixteen thousand dollars in a metal lock box to support his girlfriend, Graves, while he was in custody. Law enforcement also learned that plaintiff was a methamphetamine user and convicted felon.

Based on this information, Deputy Holsapple, Sergeant Simpson, Sheriff Steele, and Polk County District Attorney Fred Avera concluded that the Major Crimes Team had probable cause to arrest plaintiff for the murders. On the afternoon of November 24, 1998, plaintiff was arrested and interviewed at the Polk County Sheriff's Office. The Polk County/City of Dallas defendants claim that, during that interview, plaintiff was untruthful regarding his drug use, his association with the victims, and his financial relationship with Brobston.

Law enforcement obtained a search warrant for plaintiff's home. There, they seized various firearms, ammunition, and home-made silencers. They also located Brobston's metal lock box, which was empty.

On December 3, 1998, plaintiff was indicted for three counts of Aggravated Murder and for Felon in Possession of a Firearm. Plaintiff remained in custody pending his trial, which began on January 24, 2000. On February 28, 2000, the jury returned its verdict, finding plaintiff guilty of all charges. The Oregon Court of Appeals affirmed plaintiffs conviction without opinion on July 31, 2002. The Oregon Supreme Court denied plaintiff's petition for review on January 22, 2003.

On January 12, 2004, plaintiff filed a Petition for Post–Conviction Relief. At that time, the State conceded that scientific evidence used in plaintiff's criminal trial, comparing the chemical composition of bullets found at the crime scene, was unreliable. A Stipulated Judgment granted plaintiff post-conviction relief on September 2, 2009, and plaintiff's convictions for aggravated murder were set aside.

While preparing for plaintiff's new criminal trial, the State discovered that the original trial exhibits had been lost during the appeals process. On December 18, 2009, the aggravated murder charges against plaintiff were dismissed, and plaintiff was released from incarceration. An investigation by the Oregon Department of Justice concluded that the Polk County Sheriffs Office had destroyed the evidence. In 2010, plaintiffs filed the present action, alleging violations of 42 U.S.C. § 1983, abuse of process, and malicious prosecution against the Polk County/City of Dallas defendants and the State defendants. In 2011, the evidence was found in the State's possession.

STANDARDS

A party is entitled to summary judgment as a matter of law if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c) ; Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.1991). The moving party carries the initial burden of proof and meets this burden by identifying portions of the record on file that demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the initial burden is satisfied, the burden shifts to the non-moving party to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id.

The court must view the evidence in the light most favorable to the non-moving party. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir.2000) (citations omitted). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. MetroPCS, Inc. v. City & County of S.F., 400 F.3d 715, 720 (9th Cir.2005) (citation omitted). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir.1981) (citing Fed.R.Civ.P. 56(c) ).

Deference to the non-moving party has limits. The non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The “mere existence of a scintilla of evidence in support of the [non-moving party's] position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477...