Nemeth v. Ellena
| Decision Date | 18 May 2015 |
| Docket Number | Case No. 1:13-cv-01089-CL |
| Parties | ANTHONY ROBERT NEMETH, Plaintiff, v. WILLIAM ELLENA, Oregon State Trouper; CHRIS P. BROWN, Oregon State Police Superintendent; TIM EVINGER, Klamath County Sheriff; BRIAN BRYSON, Klamath County Deputy; and KLAMATH COUNTY, a political subdivision of the State of Oregon, Defendants. |
| Court | U.S. District Court — District of Oregon |
M. Christian Bottoms
Law Office of M. Christian Bottoms
P.O. Box 86188
Portland, Oregon 97286
Attorney for plaintiff
Ellen F. Rosenblum
Andrew D. Campbell
Kenneth C. Crowley
Oregon Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301
Attorneys for defendants William Ellena and Chris Brown
Thomas F. Armosino
Adam Zedikiah Daheim
Frohnmayer Deatherage, et al.
2592 E. Barnett Road
Attorneys for defendants Brian Bryson, Tim Evinger, and Klamath CountyCLARKE, Magistrate Judge:
Anthony Nemeth ("plaintiff") filed this action against William Ellena, Chris P. Brown, Brian Bryson, Tim Evinger, and Klamath County (collectively "defendants"), alleging numerous claims under 42 U.S.C. § 1983 and state law. Ellena and Brown move for summary judgement pursuant to Fed. R. Civ. P. 56(a). Bryson, Evinger, and Klamath County filed a separate motion for summary judgment. All parties have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, defendants' motions are granted and this case is dismissed.
On July 1, 2011, plaintiff was driving on Highway 140 in Klamath County, Oregon. First Am. Compl. ("FAC") ¶ 15. Plaintiff was travelling east with three companions, each on his own motorcycle, when Oregon State Police ("OSP") Trooper Ellena noticed them. Campbell Decl. Attach. 1, at 2. Ellena was on-duty and travelling west, in a designated safety corridor and marked OSP vehicle. Id. The posted speed limit in this safety corridor is 55 miles per hour ("mph"). Campbell Decl. Ex. A, at 5; Chambers Decl. ¶ 4. Ellena used his radar device to measure the speed of the four motorcycles, Which registered at 72 and 71 mph. Campbell Decl. Ex. A, at 5. Senior OSP Trooper David Chambers was also on-duty, independently travelling westbound on Highway 140, and observed the four eastbound motorcycles. Chambers Decl. ¶ 4. As Ellena reversed direction to pursue plaintiff, Chambers stated over the radio that "he checked the motorcycle's speeds [sic] at 71 mph." Id.; Campbell Decl. Ex. A, at 6.
Ellena initiated a traffic stop at approximately 7:00 p.m. for speeding in a safety corridor. Campbell Decl. Ex. A, at 5; Daheim Decl. Attach. 3, at 2.1 "Because there were multipleindividuals and vehicles." Chambers "pulled over to assist in the traffic stop." Chambers Decl. ¶ 5. At or around the same time, Klamath County Deputy Bryson arrived on-scene to provide cover. FAC ¶¶ 15, 17; Daheim Decl. Attach. 1, at 2, 4, 10.
The four motorcyclists pulled over and halted roughly in a line, and Ellena parked behind them. Campbell Decl. Ex. A, at 6; Campbell Decl. Ex. B, at 6:59-7:01. Ellena first approached the rear-most motorcyclist, Gerald Verboomen, and asked if he had any weapons on him; Verboomen responded "no." Id. When asked for his driver's license, Verboomen indicated it was in an unlocked cargo box on his motorcycle, along with two loaded firearms. Id. Ellena safely removed the firearms and retrieved Verboomen's driver's license. Id. While Verboomen had a California concealed weapon permit, he did not possess a license to carry a concealed firearm in the State of Oregon in violation of Or. Rev. Stat. § 166.250. Id.
Ellena then moved on to Thomas Mattern, asking if he had any weapons; "Mattern replied, 'No sir . . . pocket knife.'" Campbell Decl. Ex. A, at 6; Campbell Decl. Ex. B, at 7:02. Ellena obtained Mattern's divers' license, made some cursory inquiries about objects in plain view on the motorcycle, and approached the next rider - plaintiff -who was wearing a Gypsy Joker Motorcycle Club vest, including a "1 %er" patch. FAC ¶ 15; Campbell Decl. Ex. B, at 7:02; Campbell Decl. Attach. 3, at 4. Ellena had specific training regarding the Gypsy Joker Motorcycle Club that he was cognizant of during this stop. Campbell Decl. Ex. A, at 6; Campbell Decl. Attach. 1, at 3-4.
After reiterating that the reason for the traffic stop was speeding, Ellena asked plaintiff if he had any weapons. Campbell Decl. Ex. A, at 6; Campbell Decl. Ex. B, at 7:03-04. Plaintiff responded that he was carrying "a Beretta handgun in his left vest pocket and a Smith and Wesson revolver in his left side saddle bag." Id. Ellena informed plaintiff that, "for my safety,"he was going to remove the loaded firearms. Id. Plaintiff did not object and was cooperative at all relevant times. Id. Once Ellena safely removed the firearm from plaintiff's person and obtained his drivers' license, plaintiff, at Ellena's request, voluntarily stepped away from the saddlebag containing the remaining firearm. Campbell Decl. Ex. B, at 7:06. This permitted Ellena to turn his attention to the lead rider, Greg Reid, who was also wearing a Gypsy Joker Motorcycle Club vest. Id.; Campbell Decl. Ex. A, at 7. Although Reid was confrontational, Ellena obtained his drivers' license and safely remove multiple knives. Campbell Decl. Ex. A, at 4, 7; Campbell Decl. Ex. B, at 7:04-10.
Ellena went back and removed the remaining firearm from the saddlebag of plaintiff's motorcycle, at which point he noticed that it bore a "Department of Corrections" emblem. Campbell Decl. Ex. A, at 7; Campbell Decl. Ex. B, at 7:09. At 7:15 p.m., Ellena requested that OSP dispatch "perform a stolen check"; he told the dispatcher, via radio, the serial number of the firearm and its make/caliber. Campbell Decl. Ex. A, at 7; Campbell Decl. Ex. B, at 7:15. Approximately two minutes later the OSP dispatcher informed Ellena that the firearm was registered as stolen. Campbell Decl. Ex. B, at 7:17. The status of the stolen firearm was later confirmed by the OSP and Josephine County. Campbell Decl. Exs. C-D. After "advis[ing] [him] that the revolver he possessed was reported stolen," Ellena Mirandized plaintiff and placed him under arrest Possession of a Stolen Firearm pursuant to Or. Rev. Stat. § 164.055(d). Campbell Decl. Ex. A, at 1, 7; Campbell Decl. Ex. B, at 7:18. After indicating that he understood his rights, plaintiff explained that "he bought the revolver [in question] from a guy . . . approximately 8 months ago" for $150, despite the fact that he believed it to be worth $500, and did not know it was stolen. Campbell Decl. Ex. A, at 7. Around 7:25 p.m., after being placed in behind-the-backhandcuffs and searched, plaintiff was moved into the backseat of Ellena's patrol car. Id.; Campbell Decl. Ex. B, at 7:25; Chambers Decl. ¶ 8.
Ellena re-contacted Mattern. Id.; Campbell Decl. Ex. A, at 7. He discovered that Mattern, like Verboomen, had lied about not possessing any firearms. Campbell Decl. Ex. A, at 7; Campbell Decl. Ex. B, at 7:30. In fact, during the entire length of the stop, Mattern had a loaded firearm concealed in his left boot. Id. Mattern did not have a valid Oregon concealed weapon permit, such that Ellena seized this additional firearm and arrested Mattern for Unlawful Possession of a Firearm pursuant to Or. Rev. Stat. § 166.250. Campbell Decl. Ex. A, at 2, 7; Campbell Decl. Ex. B, at 7:33-35.
At 7:50 p.m., Chambers allowed plaintiff to step out of the back seat of the patrol vehicle for approximately two minutes because he was "voicing discomfort." Chambers Decl. ¶ 7; Campbell Decl. Ex. B, at 7:50, Track 2. In addition, Chambers moved plaintiff's handcuffs so that they were in front of his body "for the sole purpose of increasing his comfort." Chambers Decl. ¶¶ 8-9. He also "inquired if [plaintiff] needed an ambulance [but plaintiff declined, stating only that] his back hurt." Id. at ¶ 7; Campbell Decl. Ex. B, at 7:50, Track 2. However, plaintiff later requested his narcotic pain medication, which was located on his motorcycle. Daheim Decl. Attach. 2, at 2. One or more OSP Troopers denied this request. Id. at 2-4.
Around 8:10 p.m., plaintiff was allowed out of the backseat of the patrol vehicle for a second time to stand and stretch. Campbell Decl. Ex. B, at 8:11, Track 2. Between approximately 8:15 p.m. and 8:20 p.m., Reid was "issued a verbal warning" for speeding, Verboomen was cited for Unlawful Possession of a Firearm, and both were "released from the scene." Campbell Decl. Ex. A, at 3-4, 7-8; Campbell Decl. Ex. B, at 7:04-10, 8:09-18. At 8:25 p.m., Mattern was placed in the backseat of the patrol car with plaintiff. Campbell Decl. Ex. B, at 8:25-26. Atapproximately 8:30 p.m., plaintiff was again allowed to step out of the patrol car to stand and stretch for five minutes. Campbell Decl. Ex. B, at 8:29-34, Track 1 & 2. At or around the same time, Bryson left the scene; he did not speak to plaintiff, perform any investigation, make any arrests, or take custody of any property. Daheim Decl. Attach. 1, at 2-8. At approximately 8:45 p.m., the towing company arrived to remove plaintiff's and Mattern's motorcycles. Campbell Decl. Ex. B, at 8:46.
Almost immediately thereafter, Ellena began transporting plaintiff and Mattern to the Klamath County Jail; they arrived at approximately 9:35 p.m. Id. at 8:48-9:33; Campbell Decl. Ex. A, at 8. At some unspecified time after his arrival, plaintiff again requested his narcotic medication or, alternatively, to be taken to a doctor. Daheim Decl. Attach. 1, at 3. This request was denied and plaintiff did not receive any medical attention while being detained; he was released on bail at approximately 12:30 a.m. on July 2, 2011. Daheim Decl. Ex. 1. On August 24, 2011, the Klamath County District Attorney's Office dismissed the charges brought against plaintiff. FAC ¶ 25. Plaintiff subsequently "tried to get his firearms back [but] was returned two holsters and...
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