Dinan v. Multnomah Cnty.

• Court: U.S. District Court — District of Oregon
• Writing for the Court: Paul PapaK
• Decision Date: 28 January 2013
• Docket Number: 3:12-cv-00615-PK
• Citation: Dinan v. Multnomah Cnty., 3:12-cv-00615-PK (D. Or. Jan 28, 2013)
• Parties: PATRICK W. DINAN, Plaintiff, v. MULTNOMAH COUNTY and JASON VETTER, Defendants.

PATRICK W. DINAN, Plaintiff,

v.MULTNOMAH COUNTY and JASON VETTER, Defendants.

3:12-cv-00615-PK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

Dated: January 28, 2013

OPINION ANDORDER

PAPAK, Magistrate Judge:

Plaintiff Patrick Dinan brings this civil rights action against defendants Multnomah County and Multnomah County Sheriff's deputy Jason Vetter arising out of a confrontation between Dinan and Vetter inside the Multnomah County Courthouse. Dinan alleges claims under 42 U.S.C. § 1983 for unreasonable seizure and excessive use of force in violation of the Fourth Amendment, under § 1983 for retaliation for conduct protected by the First Amendment, as well as common law torts of assault and battery, and false imprisonment. (Fourth Amend. Compl., #29.) Now before the court are defendants' motion for summary judgment on all of plaintiff's claims (#32) and plaintiff's motion for partial summary judgment on his § 1983 FourthAmendment claim against defendant Vetter and against both defendants' on their qualified immunity affirmative defenses (#43.) For the reasons discussed below, both parties' motions are granted in part and denied in part.

BACKGROUND

This case focuses on events that took place during the afternoon of September 30,2009 inside the Multnomah County Courthouse. Dinan, who was 64 years old at the time, came to the courthouse concerning a pending case related to a traffic citation for having an expired vehicle registration. (Walch Decl., #45, Ex. E, at 49:10-13) ("Dinan Dep."); (Dinan Decl., #51, ¶16.) Judge pro tern Christopher Larsen had previously presided over a court trial in that case on August 12,2Q09 and taken the case under advisement. (Dinan Dep. at 49:14-19); (Jones Decl., #34, Ex. 2, at 3); (Larsen Decl., #38, ¶2.) According to Larsen, Dinan was "very argumentative and aggressive" during the trial, and Larsen had to admonish him several times to remain calm. Id. at ¶3.

In any event, on September 30, 2009 Dinan came to the courthouse to file a motion for a temporary injunction to prevent law enforcement from citing him for having an unregistered vehicle while Judge Larsen was still drafting his ruling. (Dinan Dep., at 51:4 - 52:18; 57:2-22); (Jones Decl., Ex. 2 at 3.) After entering the courthouse, Dinan went directly to Room 106, the clerk's office, and filed the motion for the temporary injunction. (Dinan Dep., at 57:19-20.) Because Dinan had some extra time, he went to Judge Larsen's courtroom - Room 124- to ask the judge when he would issue a written decision, since almost 60 days had passed since Dinan's trial. (Dinan Dep., at 48:16-23, 50:22-51: 3; 57:3-22.)

A video recording of Judge Larsen's courtroom that afternoon shows Dinan sitting in thesecond row and waiting for Judge Larsen to finish traffic court, (Vetter Decl., #41, Ex. 3) (Courtroom Video). Either Judge Larsen or his courtroom clerk, Vanessa DeJesus, had requested a Sheriff's deputy come to the courtroom after Dinan arrived because of concerns about Dinan's previous behavior. (Larsen Decl., #38, ¶6); (DeJesus Decl., #36, ¶4.) Consequently, Deputy Vetter, an on-duty Court Services Section (CSS) deputy, sat in the rear of the courtroom while Judge Larsen conducted the traffic court docket.¹ (Courtroom Video at 0:00); (Vetter Deck, #41, ¶7); (Walch Decl., #45, Ex. C, at 24:10-16) (Vetter Dep.).

As Judge Larsen finished his traffic calendar, Dinan stood up, walked towards the bench holding some papers, and stopped at the side bar. (Courtroom Video at 1:12-18); (Vetter Deck, ¶8.) As he approached the bench, Dinan began speaking to Judge Larsen in a normal tone of voice. (Larsen Deck, ¶7); (DeJesus Deck, ¶¶5-6). Dinan apparently wanted to give the papers he was holding directly to Judge Larsen. (DeJesus Deck, ¶5.) An audio recording from the courtroom indicates that Judge Larsen told Dinan that he had a case under advisement with Dinan as a defendant, that Dinan had no case on the docket that day, and that since no opposing counsel was present, it would be improper ex parte contact for him to talk with Dinan. (Vetter Deck, Ex. 4, at 2:49:25-44) (Courtroom Audio) After Judge Larsen told Dinan that he would not talk to him, Dinan seemed to become more frustrated, using what Judge Larsen and Vetterdescribe as an agitated, argumentative, and aggressive tone of voice.² (Larsen Decl., ¶8); (DeJesus Decl., ¶7); (Vetter Decl., ¶8.) At that point Dinan can be heard on the audio recording saying, "How does one do it, Your Honor? When will I expect to get it then?" and then in a slightly lower tone of voice, "Jesus." (Courtroom Audio, at 2:49:45-53.) Around the same time, Judge Larsen stood up and left the bench, noting that Dinan was clearly frustrated, angry, and "being aggressive." (Courtroom Video, at 1:30-32); (Larsen Decl., ¶9.) The clerk told Dinan that court was over and she would have to lock up the courtroom. (Courtroom Audio, at 2:49:53 -55,) The audio ends there, but the clerk also states that Dinan argued with her for several more seconds, which Dinan denies. (DeJesus Deck, ¶7); (Dinan Deck, #51, ¶3.) Meanwhile, Vetter remained seated in the rear of the courtroom. (Courtroom Video, at 1:32).

As Dinan turned away from the clerk's desk and walked toward the rear of the courtroom, Vetter rose from his seat and stood near the door out of the courtroom. (Courtroom Video, at 1:35.) Dinan returned to the second row of the gallery, put on his hat and jacket, and retrieved his papers. (Courtroom Video, at 1:36 -44.) While putting on his coat, Dinan said something to Vetter in what Vetter described as an upset tone of voice. (Vetter Deck, ¶9.) Because Vetter perceived Dinan's behavior to be disruptive towards court staff and Judge Larsen, because Dinan's voice and body language showed he was still upset, and because Dinan "had no more business with the court that day," Vetter determined that Dinan "needed to leave the courthouse for the day because of his behavior." Id. Dinan walked towards the courtroom door, and paused near Vetter as another CSS deputy, Deputy Perkins opened the courtroom door from the outsideand told Dinan he needed to leave. (Courtroom Video, at 1:45) (Perkins Deck, #39, ¶¶6-7.) Vetter put his right hand on Dinan's left shoulder, and they appeared to engage in conversation for a few seconds. Id. at 1:46-1:48.

According to Vetter, he told Dinan that Dinan "needed to leave the courthouse, that it was time for him to leave, and that he was done for the day," using a normal tone of voice and making it clear that Dinan needed to leave. (Vetter Deck, ¶¶10,11); (Vetter Dep., at 28:1-3); (DeJesus Deck, ¶8.) Vetter initially testified that he could not recall whether Dinan said anything in response to Vetter's order to leave, but Vetter later declared that Dinan argued back, saying that he had a right to be in the building since it was a public facility. (Vetter Dep., at 28:11-14); (Vetter Deck, ¶¶10,1 1.) DeJesus and Perkins also indicated that Dinan appeared to be arguing with Vetter. (DeJesus Deck, ¶8); (Perkins Deck, ¶6.) During this exchange, Dinan and Vetter remained in front of the door out of the courtroom, and Vetter perceived Dinan's hesitation to be "some sort of resistance." (Vetter Dep., at 28:4-7); (Courtroom Video, at 1:46-48.)

Dinan offers a different account. Dinan states that neither Vetter nor Perkins told him he had to leave the courthouse while he and Vetter stood near the door, although Dinan also testified that he did not have a recollection of exactly what Vetter said. (Dinan Deck, ¶7.); (Dinan Dep., at 84:16-22.) Dinan also denies arguing with Vetter at the door of the courtroom and denies saying that he wanted to stay in the courtroom. (Dinan Deck, ¶5.) Dinan explains that because Judge Larsen had already left the bench, there was no point for him to stay in the courtroom; instead, at that point Dinan intended to return to Room 106 and ask the clerk when he could expect to receive a notice of temporary injunction. Id.

After Perkins allegedly told Dinan he needed to leave and gestured with his hand forDinan to come out of the courtroom, Dinan exited the courtroom with Vetter following behind, keeping his right hand on Dinan's back. (Courtroom Video, at 1:48-50); (Perkins Deck, ¶7,) Dinan was not resisting and Vetter was not pushing Dinan. (Vetter Dep., at 19:1-8.) This and the interaction that follows was captured by video taken in the hallway outside Room 124. (Vetter Deck, Ex. 3, at 2:16-17) (Hallway Video). Instead of walking to the left, the most direct route to the courthouse exit, Dinan started to turn to the right. (Hallway Video, at 2:18.) Dinan said that he was going to Room 106, where the clerk's filing window is located. (Vetter Dep., at 12:9-17); (Vetter Deck, ¶14); (Dinan Dep., at 78:5-8.) Dinan's intention at the time was to go to Room 106, ask the clerk when he would receive his notice of temporary injunction, and then leave the courthouse through the exit that is just on the other side of Room 106. (Dinan Deck, ¶¶5-6.)

As Dinan turned, Vetter, who was still standing behind Dinan, placed his right hand briefly on Dinan's right shoulder, while Perkins turned squarely to face Dinan and held his right arm out, blocking the path down the hallway to the right, (Hallway Video, at 2:18.) Dinan continued pivoting and walking backwards, so that his body faced back towards Vetter, Perkins, and the door to Room 124. (Hallway Video, at 2:19.) As Dinan turned and retreated, Vetter dropped his right hand from Dinan's right shoulder and moved it towards Dinan's left shoulder. (Hallway Video, at 2:19.) Dinan took another step back away from Vetter, and Vetter stepped toward Dinan, stretching out his arm at shoulder height and placing his right hand on Dinan's left shoulder, (Hallway Video, at 2:19.) Vetter perceived that Dinan's body was tense, (Vetter Deck, at ¶16.) Vetter did not grab Dinan or apply an more force than the weight of his hand. (Vetter Deck, ¶15.) Vetter had the intention of...