Waller v. Drago
| Decision Date | 11 June 1985 |
| Docket Number | No. P84-6075-PA.,P84-6075-PA. |
| Citation | 611 F. Supp. 405 |
| Parties | Howard Welcome WALLER, Plaintiff, v. Roy DRAGO, James Carey, Richard Byram, Marie Gard, Dawn Stewart, Morrow County, by and through its Board of Commissioners, and Umatilla County, by and through its Board of Commissioners, Defendants. |
| Court | U.S. District Court — District of Oregon |
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Spencer M. Neal, Ginsburg, Gomez & Neal, Hillsboro, Or., for plaintiff.
James P. Martin, Joyce A. Hyne, Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, Or., for defendants James Carey, Richard Byram, Marie Gard, Dawn Stewart, Umatilla County.
Defendants Umatilla County, the Umatilla County Board of Commissioners, and Umatilla County employees James Carey, Richard Byram, Marie Gard, and Dawn Stewart (Umatilla County defendants) move for summary judgment. I grant the motion with respect to plaintiff's unreasonable seizure and due process claims.
Plaintiff Howard Welcome Waller brings this action pursuant to 42 U.S.C. § 1983 and the common law of Oregon. He seeks declaratory and monetary relief. Defendants are Morrow County, the Morrow County Board of Commissioners, Morrow County Sheriff Roy Drago (Morrow County defendants), and the Umatilla County defendants.
The pleadings and affidavits show that there is no dispute regarding the following events. On May 11, 1983, plaintiff was arrested in Morrow County, Oregon and charged with driving while suspended (DWS). Morrow County officials held him for three days. On May 13, 1983, he appeared in Morrow County Circuit Court, pled guilty to the DWS charge, and was sentenced to time served. (Complaint, at 6; Second Amended Complaint, ¶ 4.1.)
While holding Waller, the Morrow County Sheriff's Office received information that the Oregon Board of Parole had issued a warrant for Waller's arrest. (Morrow County Defendants' Motion for Summary Judgment, Ex. "K" at 1-2.) This was confirmed by phone. (Id.) Acting on this information, Morrow County officials arranged for Waller's transfer to the Umatilla County Jail, which had space available. After he pled guilty to the DWS charge, Waller was transferred to the Umatilla County Jail.
Waller complained to Umatilla County Jail employees that his incarceration was illegal. He obtained counsel and filed a writ of habeas corpus in state court. He was released July 1, 1983, after the writ was granted by Pro Tem Morrow County Circuit Court Judge Ralph Currin, who found that Waller was "not being held ... pursuant to any valid warrant, detainer, or other court order...." (Second Amended Complaint, "Exhibit.")
Waller alleges that his fifty-one day incarceration at the Umatilla County Jail was in violation of his right to be free of unreasonable seizures of his person, his right not to be deprived of liberty without due process, and his right to be free of cruel and unusual punishment. Under Oregon law, he alleges false imprisonment and negligence. He also alleges that his first amendment rights were violated when defendants tampered with his official mail. (Second Amended Complaint, ¶ 5.)
The Umatilla County defendants and the Morrow County defendants moved for summary judgment. Waller agreed to dismiss the claim against the Morrow County defendants. During a pretrial conference, he also agreed to dismiss the mail tampering claim against Umatilla County. At the same conference, I denied the Umatilla County defendants' motion for summary judgment insofar as it applied to Waller's other claims. By letter, the Umatilla County defendants requested that I reconsider this ruling, but I denied the request. I then instructed the parties to brief the effect of Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), and its progeny. I now grant the Umatilla County defendants' motion for summary judgment with respect to the unreasonable seizure and due process claims.
Federal Rule of Civil Procedure 56(c) allows the court to grant summary judgment if it finds that: (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter of law. The moving party has the burden of establishing the absence of a genuine issue of material fact. Securities and Exchange Commission v. Murphy, 626 F.2d 633, 640 (9th Cir.1980). All reasonable doubts as to the existence of a genuine issue of material fact should be resolved against the moving party. Hector v. Weins, 553 F.2d 429, 432 (9th Cir.1976). In addition, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Where different ultimate inferences can be drawn, summary judgment is inappropriate. Sankovich v. The Life Insurance Company of North America, 638 F.2d 136 (9th Cir.1981).
If the moving party satisfies the initial burden, then the burden shifts to the opponent to come forward with specific facts showing that a genuine issue of material fact remains in the case. Fed.R.Civ.P. 56(e); Neely v. St. Paul Fire & Marine Insurance Co., 584 F.2d 341, 344 (9th Cir. 1978). An adverse party may not rest upon the mere allegations in his pleadings; he must present the issues of fact in evidentiary form. Fed.R.Civ.P. 56(e). If the adverse party does not respond, summary judgment, if appropriate, shall be entered against him. Id.
In evaluating plaintiff's unreasonable seizure and due process claims, I am not bound by Judge Currin's finding that the plaintiff was "not being held ... pursuant to any valid warrant, detainer, or other court order...." (Second Amended Complaint, "Exhibit.") This finding is not supported by the summary judgment material presented to me. The Umatilla County defendants are also not collaterally estopped from raising this issue here.
Under the doctrine of collateral estoppel, once an issue is actually litigated and necessarily determined, that determination is conclusive in subsequent suits based on a different cause of action but involving a party or privy to the prior action. United States v. ITT Rayonier, Inc., 627 F.2d 996, 1000 (9th Cir.1980). "Party" need not be defined in a rigid manner. United States v. Geophysical Corp., 732 F.2d 693, 697 (9th Cir.1984). A person not technically a party to the prior action may be bound if his interests are so similar to those of a party to the prior action that the party was his "virtual representative" in the prior action. Id.
Although the Supreme Court permitted the offensive use of collateral estoppel in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), it allowed the courts "broad discretion to determine when it should be applied." Id. at 331, 99 S.Ct. at 651.
Judge Currin's order indicates that Richard McNerny, the Morrow County's District Attorney, was named as the only defendant in Waller's habeas petition. The order also indicates that McNerny and a Morrow County Sheriff's Deputy were present.
Morrow County did not act as the "virtual representative" of the Umatilla County defendants in the habeas action. The essence of a habeas action is that the defendant has custody of the petitioner. Morrow County did not have custody of Waller at the time of the hearing. While the Umatilla County Jail accepted custody of Waller at the request of Morrow County officials, Umatilla County held Waller pursuant to the authority of a State Board of Parole warrant, rather than any Morrow County order. It would be unfair to apply offensive collateral estoppel here.
I grant summary judgment for the Umatilla County defendants on Waller's claim that his right to be free of unreasonable seizures was violated by his detention at the Umatilla County Jail. There is no dispute but that Umatilla County held Waller pursuant to official teletype communications that the State Board of Parole had issued a warrant for Waller's arrest on October 13, 1981. There is also no dispute that Umatilla County confirmed the warrant by telephone shortly after receiving him. (Umatilla County Defendants' Motion for Summary Judgment, Ex. "A," "B," "E.")
Waller disputes whether Umatilla County received a copy of the warrant while it held him. This does not present an issue of material fact. Oregon law provides that the "written order of the Board of Parole is sufficient warrant for any law enforcement officer to take into custody" an alleged parole violator. ORS 144.331(1). Oregon law also provides, however, that an officer need not have a copy of a warrant or order in hand, but may rely on official communications that a warrant exists. Oregon Revised Statutes 133.310(2) provides:
A peace officer may arrest a person without a warrant when the peace officer is notified by telegraph, telephone, radio or other mode of communication by another peace officer of any state that there exists a duly issued warrant for the arrest of a person within the other peace officer's jurisdiction.
Oregon Revised Statutes 133.310(2) modifies Oregon Revised Statutes 144.331(1). Umatilla County was entitled to take custody of Waller under Oregon law.
The federal courts have also held that arrest and detention pursuant to teletype, computer, or verbal notification of an arrest warrant satisfy the fourth amendments' proscription against unreasonable seizures. E.g., United States v. Roper, 702 F.2d 984, 988-89 (11th Cir.1983) (); Ruiz v. Craven, 425 F.2d 235, 236 (9th Cir.1970) (). Even if Umatilla County "seized" plaintiff for purposes of the fourth amendment when it accepted custody of him, it was...
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