Liu v. Portland State Univ.

• Decision Date: 16 May 2016
• Docket Number: 3:14-CV-00908-BR
• Parties: HENRY D. LIU, Plaintiff, v. PORTLAND STATE UNIVERSITY, et al., Defendants.
• Court: U.S. District Court — District of Oregon

HENRY D. LIU, Plaintiff, v. PORTLAND STATE UNIVERSITY, et al., Defendants.

3:14-CV-00908-BR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

May 16, 2016

OPINION AND ORDER

MICAH D. FARGEY

Fargey Law PC

5 Centerpointe Drive, 4^th Floor

Lake Oswego, OR 97035

(503) 946-9426

Attorneys for Plaintiff

P.K. RUNKLES-PEARSON

SHARAE M. WHEELER

Miller Nash LLP

111 S.W. Fifth Avenue

Suite 3400

Portland, OR 97204

(503) 205-2314

Attorneys for Defendants Portland State University, Jacqueline Balzer, Domanic Thomas, and Joseph Schilling

TRACY REEVE

Portland City Attorney

J. SCOTT MOEDE

WADE H. TUCKER

Deputy City Attorneys

1221 S.W. Fourth Avenue, Suite 430

Portland, OR 97204

(503) 823-4047

Attorneys for Defendants City of Portland and James Crooker

KAREN O'KASEY

JASON R. POSS

Hart Wagner LLP

1000 S.W. Broadway, Twentieth Floor

Portland, Oregon 97205

(503) 222-4499

Attorneys for Defendant Oregon Health & Sciences University

DUNCAN K. FOBES

Patterson Buchanan Fobes & Leitch

2112 Third Avenue, Suite 500

Seattle, WA 98121

(206) 462-6700

Attorneys for Defendant Cascadia Behavioral Healthcare

BROWN, Judge.

This matter comes before the Court on the Motion (#169) for Summary Judgment of Defendant Oregon Health and Sciences University (OHSU). For the reasons that follow, the Court GRANTS OHSU's Motion and DISMISSES with prejudice Plaintiff's claims against OHSU.

BACKGROUND

The following facts are taken from the Agreed Facts in the parties' Pretrial Order and the parties' materials related to OHSU's Motion for Summary Judgment and are undisputed unless otherwise noted.

Plaintiff Henry D. Liu was enrolled as a graduate student in the Conflict Resolution Program at Portland State University (PSU) from the beginning of the fall term in 2011 through June 21, 2012.

On April 20, 2012, another graduate student in the Conflict Resolution Program told PSU Professor Rachel Cunliffe that Plaintiff had made statements about the faculty that the student found threatening. At some point the student also reported her conversation with Plaintiff to PSU Campus Public Safety (CPS) Officer Sergeant Joseph Schilling. The student specifically advised Sergeant Schilling that she was a classmate of Plaintiff and during a break from class on April 12, 2012, Plaintiff told the student that (1) Plaintiff "had issues" with the Conflict Resolution Program and its Director, Professor Robert Gould, because of an unsatisfactory grade that he had received after he caused another student to cry in class; (2) he "had issues" because a fellow student had allegedly used the word "chink" while speaking with him; and (3) he made statements that made the student believe he was angry because he felt faculty members weretreating him differently due to his ethnicity. The student also advised Sergeant Schilling that Plaintiff told her after class on April 12, 2012, that he had a back or spinal injury and was taking a large amount of pain medication that often interfered with his thinking and daily activity. The student suggested alternatives such as yoga and meditation to relieve stress, but Plaintiff stated: "[T]his situation is really pushing me over the edge and we know what happens when students are pushed over the edge." The student emailed Plaintiff shortly after April 12, 2012, and Plaintiff responded he was very stressed, upset, and unable to sleep and was "becoming aware of repressed emotions of anger." The student told Sergeant Schilling that the student talked to Plaintiff after class on April 19, 2012, about Professor Gould, and Plaintiff became agitated, raised his voice, used profanity, and stated: "I'm about ready to stick a .45 in his ass." Plaintiff then lowered his voice and apologized, but he continued to express frustration and stated he was unable to sleep. He also repeated he was taking a lot of pain medication, but it was not helping his pain level. Plaintiff added: "Professor Stan Sitnick giving him a [bad] grade did not help . . ., 'he could get shot.'" Plaintiff told the student that he was noticing he had "a lot of hatred." The student became alarmed, changed the subject, and asked Plaintiff if he had weekend plans. Plaintiff responded he planned to go to "targetpractice on Sunday." Sergeant Schilling believed the student's statements were credible and felt concerned.

Sergeant Schilling ascertained Plaintiff was living off of the PSU campus. Accordingly, Sergeant Schilling contacted the Portland Police Bureau and shared with Portland Police Officer James Crooker the student's statement about Plaintiff.

Officer Crooker contacted the Project Respond team from Defendant Cascadia Behavorial Health Care and asked them to assist in a visit to Plaintiff's residence for a mental-health evaluation and possible Director's Hold pursuant to former Oregon Revised Statute § 426.233.

On April 20, 2012, Officer Crooker, Portland Police Officer Jason Walters, Sergeant Schilling, CPS Officer David Baker, and Cascadia Project Respond personnel Rachel Phariss and Sarah Schellhorn went to Plaintiff's residence to address what they considered to be Plaintiff's possible threat to the community. Phariss and Schellhorn waited around the corner from Plaintiff's apartment while Officers knocked on Plaintiff's door.

Officer Crooker testifies in his Declaration that Plaintiff "appeared dazed and confused and was unable to communicate clearly" when he answered the door. Decl. of James Crooker at ¶ 8. Plaintiff permitted the officers to enter his apartment. Officer Crooker asked Plaintiff if there were any firearms in his apartment, and Plaintiff stated he did not have any firearms.When the officers entered Plaintiff's apartment, however, they observed pamphlets for firearms on a table as well as an empty rifle box. At that point Officer Crooker asked Plaintiff again if there were any firearms in his apartment. Officer Crooker testifies in his Declaration that Plaintiff "began to back away from [Officer Crooker] and the other officers. In response [Officer Crooker] took [Plaintiff's] wrist and handcuffed Plaintiff 'for his own safety' and read Plaintiff his Miranda rights. After some discussion Plaintiff told the officers that he had firearms and agreed to tell them where they could be found in his apartment. Officers eventually found unloaded .22 and .45 caliber handguns, an unloaded M4 carbine assault rifle, an unloaded 9mm handgun, and 'thousands of rounds of ammunition.'" Crooker Decl. at ¶ 10. Officers also found "various knifes, survival tools (including an axe), a canteen, water bottles, dressings for wounds, rope, extra magazine clips, and flashlights." Id. Officer Crooker testified in his Declaration that in his experience "[t]he manner in which all these items were laid out was consistent with that of a moment's-notice preparedness for immediate accessibility to grab pre-packed grab bags in the event that combat were to occur suddenly." Id. Officers also found prescriptions for Percocet and Tramadol in Plaintiff's name, two bottles of Oxycodone prescribed to Plaintiff's father, and several empty bottles of alcohol.

Officer Crooker spoke with Plaintiff, and, "after a lengthy conversation," Plaintiff admitted he had made "bone-headed" comments "including something about using a .45 caliber handgun to kill a professor." Crooker Decl. at ¶ 11.

Phariss and Schellhorn entered Plaintiff's apartment after Officer Crooker handcuffed Plaintiff. Phariss and Schellhorn interviewed Plaintiff for 30 or 40 minutes. Phariss testifies in her Declaration that Plaintiff agreed the police could remove the firearms from his apartment. Plaintiff, however, "appeared to be confused and . . . kept sending the police to the wrong places to locate the weapons he had throughout his apartment." Decl. of Rachel Phariss at ¶ 6. Phariss states

[Plaintiff] said he could not remember making the threatening comments he made to [the student], but he admitted that he may have made such comments. [Plaintiff's] conversation was vague and he kept going off on tangents. His thought process was circular. He denied hearing voices or having hallucinations. I could not tell if he was disoriented, but he did appear to be confused. He denied any mental health history, and he denied having any intent to harm himself. He seemed to marginalize the allegation that he had made threats about shooting one of his professors. He also denied having any intention to shoot anyone at PSU.

I observed the following things while I was in [Plaintiff's] apartment: (1) the receipt from his recently purchased AR 15 indicated that he had bought it after his problems with PSU began; (2) [Plaintiff] had ammunition and tactical gear, including duffle bags with dehydrated food, knives, and "quick stop", which will stop bleeding if a person is shot by a bullet; (3) there were empty beer, liquor, and wine bottles strewn aboutthe apartment; and (4) there were Percocet and Tramadol pills on his coffee table as well as two bottles of Oxycodone with [Plaintiff's] father's name on them.

Phariss Decl. at ¶¶ 7-8. Phariss testifies "[d]iagnosing [Plaintiff] was difficult because it was unclear whether his behavior was due to alcohol, drugs, or mental illness." Phariss Decl. at ¶ 9. Phariss, therefore, deferred diagnosis, but she decided Plaintiff "would benefit from a full psychological evaluation." Phariss and Schellforn consulted with Meg Kaveny, Cascadia Project Respond Supervisor, and Kaveny consulted with Jay Auslander, Cascadia's Director of Emergency Services. Ultimately Phariss, Kaveny, and Auslander concluded a Director's Hold on Plaintiff was justified because there was probable cause to believe Plaintiff was

dangerous to others and need of immediate psychological evaluation based on (1) [Plaintiff's] speech latency, which did not appear to be a language issue; (2) [Plaintiff's] apparent confusion; (3) [Plaintiff's] vague explanations of his behavior; (4) [Plaintiff] minimizing the allegations against him and not appreciating the seriousness of making threats; (5) the

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