OPINION ORDER
KARL FORESTER, Senior Judge
This matter is currently before the Court upon the Report and Recommendation issued by the Magistrate Judge on September 7, 2010. The defendant having filed his objections, and the United States having filed its response, this matter is now ripe for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
Cook was indicted on November 30, 2006 by a federal grand jury on one count of knowingly transporting a 14-year old female from Ohio to Kentucky with the intent that she engage in sexual activity, in violation of 18 U.S.C. § 2423(a) [DE #1]. Cook proceeded to trial on March 13, 2007. The evidence at trial established that in October 2005, Cook told his daughter he was separating from her mother and that he was falling for her 15-year old cousin, Brandy. He asked his daughter if she wanted to go with him to start a new life and told her to ask Brandy if she wanted to come too. Then, on October 16, 2005, Cook drove from Lucasville, Ohio to Georgetown, Kentucky with his daughter and Brandy. His daughter testified that she thought they were going to Kentucky to talk to her uncle, Cook's brother, to see if they could stay with him when they moved. Brandy testified that Cook told her he was taking them to a mall.
After driving for about three hours, Cook stopped at a hotel in Georgetown, Kentucky, only twenty minutes from his brother's house, where he checked in. Brandy testified that after hanging out and watching television, she went to bed lying next to her cousin but when she woke up, her cousin was in the other bed and Cook was in bed with her. Brandy testified that Cook raped her.
During closing arguments, Cook's counsel admitted that he had sex with Brandy. However, she explained that the issue in this federal case was whether the significant or motivating factor behind Cook's transporting of Brandy to Kentucky was for the purpose of having sex with her. Cook's counsel argued that the evidence did not support such a finding. The jury, however, disagreed. After deliberating less than two hours, the jury returned a guilty verdict.
Cook was subsequently sentenced by this Court on June 22, 2007. The Guidelines suggested a sentencing range of 292 to 365 months of incarceration. Cook was ultimately sentenced to a 292-month term of imprisonment, to be followed by a life term of supervised release [DE ##46, 54].
Cook appealed this sentence on July 2, 2007 [DE #49]. On appeal, Cook did not dispute that he knowingly transported Brandy across state lines, that sexual activity occurred, or that she was under the age of 18. He argued instead that there was insufficient evidence that his intent in traveling across state lines was to engage in sexual activity. The Sixth Circuit rejected this argument, and affirmed Cook's conviction and sentence [DE #58].
On February 5, 2009, defendant William Cook filed his pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence [DE #65]. In this motion, he presents three grounds for relief: ineffective assistance of counsel for failing to object to an incorrect presentence investigation report; ineffective assistance of counsel for counsel's failure to inform him of a plea offer from the Government; and a violation of his constitutional rights because the jury was "all Anglo." The United States filed its Response [DE #69] to which the defendant filed his Reply [DE #70].
Then on January 12, 2010, while his motion was still pending, Cook filed a second motion which the Court construed as a Supplemental Motion [DE #71]. In his Supplemental Motion, Cook asserts the following additional claims: Cook's Motion for Judgment of Acquittal was wrongfully denied; the prosecutor improperly influenced the testimony given by some of the prosecution's witnesses; and additional claims of ineffective assistance of counsel based upon counsel's failure to protect his interest during jury selection, her failure to object to the introduction of DNA evidence that was not maintained in a proper chain of custody, her failure to call certain witnesses on his behalf, and her defamatory statements about him in her closing arguments. While this new motion contains new arguments, Cook did not submit any new evidence.
II. THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The Magistrate Judge filed her Report and Recommendation on September 9, 2010, in which she recommends denying Cook's § 2255 motions [DE #84]. Specifically, the Magistrate Judge found that Cook's claims based on jury selection and the Court's use of an incorrect presentence investigation report are barred by Bousley v. United States, 523 U.S. 614, 621 (1998), because Cook failed to raise these issues on direct appeal. Additionally, because the Sixth Circuit has already reviewed his claim based on insufficiency of the evidence, he cannot relitigate the issue in this § 2255 motion absent some highly exceptional circumstances not present in this case. See United States v. DeGroat, 102 Fed.Appx. 956, 959 (6th Cir. 2004); Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999).
The Magistrate Judge then turned to Cook's claims based on ineffective assistance of counsel during the trial and sentencing. After careful review, the Magistrate Judge determined that Cook was well-represented at trial and at sentencing and that his claims of ineffective assistance of counsel thus fail under the two-part test announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).
Finally, the Magistrate Judge considered whether the Court should issue a certificate of appealability ("COA") under Rule 11 of the Federal Rules Governing Section 2255 Proceedings. Because Cook failed to make a substantial showing of the denial of any constitutional right, the Magistrate Judge recommended that no COA issue in this case. Cook has now filed timely objections to the Magistrate Judge's Report and Recommendation, and the United States has filed its Response [DE #89].
III. ANALYSIS
This Court must make a de novo determination of those portions of the Magistrate Judge's report and recommendation to which objection is made. 28 U.S.C. § 636(b)(1)(C). First, Cook argues that he was denied a jury of his peers in violation of his Sixth Amendment rights. However, as the Magistrate Judge noted, this claim is barred as a result of Cook's failure to raise this issue on direct appeal. Accordingly, this objection will be overruled.
Next, Cook argues his counsel was ineffective for failing to call certain witnesses that would have testified that Cook had a longstanding relationship with Brandy. As the Magistrate Judge noted, the decision of Cook's counsel not to call these witness was a sound trial strategy that does not amount to ineffective assistance of counsel. United States v. Foreman, 323 F.3d 498, 503-04 (6th Cir. 2003). This objection, therefore, will be overruled.
Third, Cook again challenges his sentence. However, as the Magistrate Judge noted, he failed to raise this issue on his direct appeal. When a defendant raises a claim under § 2255 that he failed to raise at the appellate level, a court is generally precluded from reviewing the merits of such a claim unless he can show cause for his failure to raise the claim during the appeal, and actual prejudice stemming from the alleged violation. Bousley v. United States, 523 U.S. 614, 621 (1998). Cook has offered no such explanation for failing to raise this issue on direct appeal. As a result, he has procedurally defaulted on this claim. Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001). Even so, Cook's 292-month sentence is at the bottom of the guideline range and is presumed to be reasonable. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). Accordingly, this objection will be overruled.
Fourth, Cook continues to argue that the statements made by his counsel during opening and closing statements amount to ineffective assistance of counsel and resulted in his conviction. While Cook's counsel indeed made negative statements about Cook's character, this Court agrees with the Magistrate Judge that these statements were part of her strategy to lessen the impact of his offensive behavior by acknowledging it and explaining why it was not the issue in this case. Thus, this objection will be overruled.
Finally, Cook argues that the prosecutor improperly influenced the testimony of some of the prosecution's witnesses, including his family members. As noted by the Magistrate Judge, Cook failed to raise this issue on direct appeal. Under Bousley, 523 U.S. at 621, Cook has procedurally defaulted on this claim.
In conclusion, having carefully reviewed Cook's objections and finding them to be without merit, and having made a de novo determination, the Court is in agreement with the Magistrate Judge's Report and Recommendation. Therefore, the defendant's objections will be overruled.
Although this Court must make a de novo determination of those portions of the Magistrate Judge's report and recommendation to which objection is made, 28 U.S.C. § 636(b)(1)(c), "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985). To the extent that Cook failed to object to any portion of the Magistrate Judge's Report and Recommendation, he has waived the right to appeal. See Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986). Nevertheless, the Court, having examined the record and having made a de novo determination, is in agreement with the entirety of the Magistrate Judge's Report and Recommendation.
In determining whether a certificate of appealability should issue as to Cook's claims, the Court turns to Slack v. McDaniel, 529 U.S. 473 (2000), for guidance. In that case, the United States Supreme Court held that
[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) [governing the issuance of certificates of appealability] is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.
Id. at 484. In the present case, the Court determines that Cook has not presented a close call or one which is "debatable" and a certificate of appealability will not issue.
IV. CONCLUSION
Accordingly, the Court, being otherwise fully and sufficiently advised, HEREBY ORDERS as follows:
(1) the Magistrate Judge's Report and Recommendation [DE #84] is
ADOPTED as and for the opinion of the Court;
(2) Cook's objections to the Magistrate Judge's Report and Recommendation [DE #86] are
OVERRULED;
(3) Cook's motion pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct sentence [DE #65] and his supplemental motion [DE #71] are
DENIED;
(4) judgment will be entered contemporaneously with this opinion and order in favor of the United States; and
(5) this is a final Order and, pursuant to
28 U.S.C. § 2253(c), the Court finds that the defendant has not made a substantial showing of the denial of a constitutional right and thus no certificate of appealability shall issue.
This October 28, 2010.
discriminatory purpose. Rather than pleading facts that plausibly
suggest some discriminatory purpose behind Rodriguez and Ruecker's actions, Plaintiffs allege and give some facts supporting that "the Police Defendants knew or should have known" that the Federal Police Defendants were themselves acting with discriminatory purpose when they requested or directed the State Police Defendants to move Plaintiffs down the
street. (
See SAC ¶ 53-55.)
Plaintiffs further assert that "Defendants should not be permitted to hide behind the directions and requests of the Secret Service [to move the anti-Bush demonstrators] as an excuse for blatant viewpoint and content discrimination in violation of the First Amendment." (Pls.' Mem. in Opp'n 24.) These allegations do not support discriminatory intent and are irrelevant to a § 1983 claim.
State Police Defendants assert that the Secret Service agents told them that the reason for moving the anti-Bush demonstrators down California Street was to prevent anyone from being "within handgun or explosive range of the President." (SAC ¶ 54.) In response, Plaintiffs allege that "the Police Defendants knew or should have known that [this reason] was false." (SAC ¶ 55.)
Second, Plaintiffs' allegations on the whole indicate that the decision to move the anti-Bush demonstrators and not to move or screen other groups or individuals rested solely with the Secret Service, not with State Defendants. (See, e.g., SAC ¶ 53-54, 56-59; State Defs.' Mem. in Supp. 12-13.) As State Defendants assert, the allegations against them indicate no purpose on their part other than to carry out the Secret Service's directions. (See State Defs.' Mem. in Supp. 12-13.)
Third, Plaintiffs' allegations do not tend to rule out more likely explanations that do not involve a discriminatory purpose for why State Defendants complied with the Secret Service's alleged requests to relocate the anti-Bush demonstrators. (See SAC ¶ 59-60); Iqbal, 129 S. Ct. at 1951 ("[G]iven more likely explanations, [the pleadings] do not plausibly establish this purpose."). Common sense suggests there are other more likely explanations for Rodriguez and Ruecker's choice to follow the Secret Service's requests. See Iqbal, 129 S. Ct. at 1950 ("Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.") (internal citation omitted). Arguably, Rodriguez and Ruecker determined that the Secret Service officers, who have the specialized job to protect the President, had superior knowledge about threats to the President's safety. Few rationale police officers would second-guess a request by the Secret Service for a specific action when there is a presidential security concern. (See SAC ¶ 54.) These more likely explanations for the State Defendants' conduct weigh against the plausibility of Plaintiffs' § 1983 First Amendment claim against. See Twombly, 550 U.S. at 566-69 (acknowledging that defendant's parallel conduct was consistent with an unlawful agreement in violation of the Sherman Act, but nevertheless concluding that parallel conduct did not plausibly suggest an illegal agreement because it was not only compatible with, but indeed more likely explained by, lawful, unchoreographed free-market behavior).
Plaintiffs do not plead a plausible First Amendment claim under 42 U.S.C. § 1983 against Rodriguez and Ruecker. The court should grant State Police Defendants' motion and dismiss this claim.
2. State Defendants Have Qualified Immunity
Rodriguez and Ruecker are entitled to qualified immunity. For this additional reason, Plaintiffs' § 1983 claim against State Police Defendants in their individual capacities for violations of Plaintiffs' First Amendment rights should be dismissed.
As previously explained, to overcome qualified immunity, Plaintiffs must plead facts that plausibly satisfy both prongs of the qualified immunity analysis: (1) that the officers' conduct violated Plaintiffs' constitutional rights and (2) the contours of the right are sufficiently clear such that a reasonable officer would understand he is violating this right.See Saucier, 533 U.S. at 201;Iqbal, 129 S. Ct. at 1950; see Part V.A.3, supra.
As discussed above, Plaintiffs failed to plausibly plead that Rodriguez and Ruecker's personal conduct violated Plaintiffs' First Amendment rights through viewpoint or content discrimination. While the qualified immunity inquiry could end here, see Anderson, 483 U.S. at 640, the court considers for the sake of argument whether Plaintiffs' allegations overcome the second prong of the qualified immunity analysis.
To overcome the second prong of qualified immunity, Plaintiffs must plead facts that plausibly suggest that "`[t]he contours of the right [are] sufficiently clear [so] that a reasonable official would understand that what he is doing violates that right.'" See Saucier, 533 U.S. at 202 (citing Anderson, 483 U.S. at 640); Iqbal, 129 S. Ct. at 1950. This clarity depends in part on the state of the law at the time of the challenged conduct.See Saucier, 533 U.S. at 202. If the law were such that it would not be clear to a reasonable officer that his conduct was unlawful, then summary judgment for the defendant based on qualified immunity is appropriate. Id, 533 U.S. at 202 (citingMalley v. Briggs, 475 U.S. 335, 341 (1986) (declaring that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law")). In ruling on this issue from the FAC in 2007, this court noted that at the time of State Defendants' challenged conduct in 2004, it was "clearly established" that viewpoint discrimination violates the First Amendment. Moss v. U.S. Secret Service, 2007 WL 2915608 at *20 (D. Or., Oct. 7, 2007) (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) (finding that the government cannot regulate speech based upon its content or favor one viewpoint over another)).
The clarity of the constitutional right also depends on whether a reasonable officer could believe that the challenged law enforcement conduct was lawful "in light of . . . the information the . . . officers possessed" at the time of the challenged conduct. Anderson, 483 U.S. at 641 (1987); accord Bilida v. McCleod, 211 F.3d 166, 174 (1st Cir. 2000) (citing Anderson, 483 U.S. at 641, and explaining that, "[a]lthough qualified immunity normally turns on objective circumstances, . . . this likely means objective circumstances actually known to the officer" (internal citations omitted)). The court "draw[s] on its judicial experience and common sense" to determine whether Plaintiffs have plausibly alleged that it would have been clear to a reasonable officer in the position of Rodriguez and Ruecker that his conduct was unlawful. See Iqbal, 129 S. Ct. at 1950 (internal citation omitted).
Plaintiffs have not shown that it would have been clear to a reasonable officer in Rodriguez and Ruecker's situation that his conduct of moving the anti-Bush demonstrators at the instruction of the Secret Service agents was unlawful. First, the facts alleged do not plausibly suggest that either Rodriguez or Ruecker would have been aware of the differential treatment of the anti-Bush demonstrators as compared to the pro-Bush demonstrators. Respondent does not allege, much less plausibly allege, that either Rodriguez or Ruecker were on location at the time of the alleged injurious activity or knew of and were updated about the details of the relative sizes and locations of the demonstrators, diners, the President, and the nearby alleys, or of the relative distances between relevant street blocks, between the President's planned departure route and the various groups, etc. Yet, without factual allegations that plausibly suggest that Rodriguez and Ruecker knew of the differential treatment of the pro- and anti-Bush demonstrators, it is not
plausible that it would have been clear to a reasonable officer in Rodriguez or Ruecker's position that his conduct was unconstitutional. The court agrees with Police Defendants on this point. (See State Defs.' Mem. in Supp. 17 ("[P]laintiffs do not allege any facts to show that either Superintendent Ruecker or Captain Rodriguez would have been aware of [the] differential treatment, such that they might have known that plaintiffs were subjected to viewpoint (or any) discrimination.").)
Second, even if Rodriguez and Ruecker had been aware of the differential treatment of the pro- and anti-Bush demonstrators, Plaintiffs have not shown that a reasonable police officer could find no legal justification for such differential treatment.Bilida, 211 F.3d at 174-175 ("Plausible instructions from a superior or fellow officer support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his actions exists (e.g. a warrant, probable cause, exigent circumstances)."); accord Anderson, 483 U.S. at 641.
In Bilida v. McCleod, the court concluded that plaintiff "might well have a valid Fourth Amendment claim" where defendant police officers entered plaintiff's home and seized her pet racoon without a warrant. 211 F.3d 166, 174 (1st Cir. 2000) However, theBilida court also concluded that police officers were entitled to qualified immunity because they "had every reason to think that Captain Tyler had secured a warrant or concluded . . . that one was unnecessary" before he directed the defendants to seize the specific racoon at the specific address. Captain Tyler was defendants' superior officer, and the defendants knew that "the decision [to seize the racoon] had already been made" following a investigation by the police and animal control that same evening.Id.
Here, even if a reasonable officer in the position of Rodriguez or Ruecker were fully aware of the details, he would have good reason to believe that his actions in compliance with the Secret Services' orders were legally justified. A reasonable officer could conclude that the Secret Service agents were acting and giving him directions based on knowledge of a specific threat to the President's safety known only to the Secret Service agents. Plaintiffs allege that Secret Service Defendants "requested or directed . . . Police Defendants to clear California Street of all persons between Third and Fourth Streets," not to clear California Street of all pro-Bush demonstrators between Third and Fourth Streets. (SAC ¶ 53-54 (emphasis added).) Furthermore, "the Defendant Secret Service agents told . . . the Police Defendants that the reason for the request or direction was that they did not want anyone within handgun or explosive range of the President." (SAC ¶ 54.) Consequently, the Secret Service's instructions to the State Police Defendants would have been plausible instructions from a superior officer that, when viewed objectively, "could lead a reasonable officer to conclude that the necessary legal justification for his actions exists."Bilida, 211 F.3d at 174-175.
Third, Plaintiffs do not allege that Rodriguez or Ruecker knew enough about the policy and practice of the Secret Service to discern its alleged actual discriminatory policy from its alleged official policy. Plaintiffs make no allegations to support any allegation that State Defendants had sufficient knowledge to recognize that the Secret Service's activities, alleged to demonstrate the Secret Service's "Long History and Actual Policy" of discriminating against First Amendment expression (see SAC ¶ 63-72, 81-84), significantly differed from the "normal, lawful Secret Service security measures during Presidential public appearances or visits . . . absent . . . special circumstances suggesting the need for unusual security measures." (see SAC ¶ 78.)
Consequently, it is not plausible that it would have been clear to a reasonable officer in the place of Rodriguez and Ruecker that his conduct was unlawful where he was following the Secret Service's orders to move all persons though these persons consisted predominantly of anti-Bush demonstrators.
Rodriguez and Ruecker are entitled to qualified immunity. Plaintiffs have not shown that either violated Plaintiffs' First Amendment rights, a requirement under the first prong of Saucier. Moreover, they fail to overcome the second prong of qualified immunity. Plaintiffs have not shown that a reasonable officer would have known of the Secret Service agents' differential treatment of the pro- and anti-Bush demonstrators, would have second-guessed the Secret Service's directions and their provided justification, or would have known enough about the Secret Service's policies to alert him to a First Amendment violation here. Consequently, the contours of Plaintiffs' rights would not have been sufficiently clear to alert a reasonable police officer in Rodriguez or Ruecker's position that his conduct was unlawful. Therefore, State Defendants' motion to dismiss Plaintiffs' claim against Rodriguez or Ruecker in their individual capacities should be granted. See Anderson, 483 U.S. at 640.
C. City of Jackonville Defendants' Motion to Dismiss the § 1983 First Amendment Claim Is Granted
City Defendants David Towe and City of Jacksonville move for summary judgment on Plaintiffs' § 1983 claim for violation of First Amendment rights and they also move to dismiss these claims for similar or the same reasons.
Plaintiffs pled similar if not identical claims in their FAC, and City Defendants moved for summary judgment in 2007. On April 22, 2007, the court held the motion for summary judgment in abeyance pending the completion of discovery at the request of Plaintiffs' counsel. (Dkt. No. 103.) The court also stayed the discovery deadline on August 15, 2007. (Dkt. No. 129.)
Because discovery has not yet been completed, the court will not consider City Defendant's motion for summary judgment at this time. However, the court reviews City Defendants' arguments as they relate to a motion to dismiss under Rule 12(b)(6).
When the Federal Defendants sought to appeal this court's denial of their motion for summary judgment, the Ninth Circuit first explained that it did not have jurisdiction over the issue but also commented that were the appeal to succeed were to succeed, it "would deny Plaintiffs a fair opportunity to litigate the merits of their claim." Moss, 572 F.3d at 972.
As with Plaintiffs' claims against State Defendants, the complaint must plausibly plead that Defendant Towe acted under the color of state law and caused them to be deprived of their First Amendment rights. Plaintiffs allege they were deprived of their rights because of content or viewpoint discrimination. Accordingly, to survive the motion to dismiss, Plaintiffs must plausibly plead that Towe acted with discriminatory purpose during the challenged conduct. See Part V.B.I.
The City of Jacksonville may be held liable under § 1983 under current case law by what is known as a Monell claim. In Monell v. Department of Human Services of the City of New York, the Supreme Court explained,
a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsibly.
436 U.S. 658, 694-95 (1978). To survive the motion to dismiss as to § 1983 claims against the City of Jacksonville, then, Plaintiffs must plausibly allege that their First Amendment rights were
violated by way of an official policy, custom or practice of the City of Jacksonville.
Plaintiffs make allegations against the City Defendants that are generally similar to the allegations against the State Defendants. They allege,
Defendants' Towe, Rodriguez, Wingers and the other individual State and Local Police Defendants personally directed and approved of the actions of the police against [Plaintiffs], and personally directed and approved of permitting the pro-Bush demonstrators and unscreened diners, guests and visitors, . . . inside the Jacksonville Inn to remain in the vicinity undisturbed and unrestricted. The Police Defendants' actions . . . in using overwhelming and excessive force, including the use of officers in riot gear, against unarmed, law-abiding peaceful demonstrators exercising their core First Amendment rights of speech and assembly were the custom, policy, or practice of the State of Oregon and Defendants City of Jacksonville and Jackson County and Municipal Does . . . or were established as such by the individual Police Defendants in taking those actions. The individual Police Defendants had the final decision-making authority and responsibility for establishing the policies of their respective employers. The individual Police Defendants' decisions to order and implement the aforesaid police actions constituted the official policy of their respective public employers.
(SAC ¶ 96-97). Further they allege the discriminatory actions were the result of
inadequate and improper training, supervision, instruction and discipline . . . of the police officers under the personal directions of State and Local Police Defendants. Such inadequate and improper training, supervision, instruction and discipline are the custom and practice of Defendants. By the practice or custom of failing to adequately and properly train, supervise, instruct or discipline their police officers, the Defendants have directly caused the violations of rights that are the subject of this action.
(SAC ¶ 99.)
For the same reasons as set forth above, these allegations as they refer to claims for First Amendment violations are no more than conclusory allegations and thus are not considered in the evaluation of the plausibility of Plaintiffs' claims. Allegations that Defendant Towe personally directed and approved of moving the anti-Bush demonstrators and leaving other groups undisturbed are not supported by other factual allegations and amount to formulaic recitations of claim. Any remaining non-conclusory allegations do not plausibly allege that Defendant Towe acted with discriminatory intent. Plaintiffs merely allege that local police officers reasonably followed the Secret Service's request or direction to move the anti-Bush demonstrators. They have not plausibility alleged discriminatory intent.
Similarly, allegations that it was the custom and practice of the City of Jacksonville that also violated the Plaintiffs' First Amendment rights are also conclusory. Plaintiffs assert that the actions represent the custom and practice of the City of Jacksonville. However, their allegations only display that the custom or practice was to follow the directions of Secret Service officers who were tasked with providing security for the President. Plaintiffs have not alleged that the custom or practice was discriminatory or revealed any discriminatory intent. Plaintiffs have not alleged that any of the City's policies were adopted for a discriminatory purpose, thereby violating Plaintiffs' First Amendment rights. See Iqbal, 129 S.Ct. at 1948-49. There is no Monell claim against the City of Jacksonville.
Plaintiffs cannot overcome the City of Jacksonville Defendants' qualified immunity defense for the same reasons that they did not overcome the State Defendants' qualified immunity defense. See Part V.B.2. They have not met the first prong to show a violation of constitution rights, and neither can they meet the second prong. Their allegations do not plead facts that their First Amendment rights were sufficiently clear in this circumstance that a reasonable officer following the directions of the Secret Service would know he was violating Plaintiffs' rights. In the context here, in which the President's safety is of imminent concern, it was not unreasonable for an officer to conclude that moving the group of anti-Bush demonstrators' would violate those demonstrators First Amendment rights.
Plaintiffs have not alleged a plausible § 1983 claim for violation of First Amendment rights against City Defendants. The City Defendants' motion should be granted.
VI. Fourth Amendment Claims
Plaintiffs allege Defendants violated their Fourth Amendment rights in the way in which they relocated anti-Bush demonstrators. They seek relief under Bivens against the Federal Defendants and relief under § 1983 against State, County and City Defendants. The 2007 R R dismissed Plaintiffs' Fourth AmendmentBivens claim because "there were no allegations in the complaint supporting that defendants Savage or Wood directed local law enforcement to use excessive force on the demonstrators or unlawfully seize the demonstrators." (2007 R R 44.) This decision is unchanged.
To determine whether Plaintiffs have stated a plausible Fourth Amendment claim under § 1983, the court follows the framework outlined by the Supreme Court in Graham v. Connor. Davis v. City of Las Vegas, 478 F.3d 1048, 1053-54 (9th Cir. 2007). "[A]ll claims that law enforcement officials have used excessive force — deadly or not — in the course of an arrest, investigatory stop or other `seizure' . . . are properly analyzed under the Fourth Amendment and its `objective reasonableness' standard."Graham, 490 U.S. 386, 395 (1989). "This analysis `requires balancing the nature and quality of the intrusion' on the person's liberty with the `countervailing governmental interests at stake' to determine whether the force used was objectively reasonable under the circumstances." Davis, 478 F.3d at 1054 (citing Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005)).
The court looks to reasonableness at the moment the excessive force occurred. "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers violates the Fourth Amendment. The calculus of reasonableness must embody the allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation."Graham, 490 U.S. at 396-97 (internal citations omitted).
The court first assesses the quantum of force used and then measures the governmental interest at stake by evaluating a range of factors. Davis, 478 F.3d at 1054. Factors include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Id. Courts also may consider whether there were other available alternative methods in capturing or subduing the individual. Id.
Plaintiffs' allegations of Fourth Amendment violations incorporate State, County, and City Defendants. Plaintiffs explicitly designated the term "Police Defendants" to refer collectively to (1) State Police Defendants Ruecker, McLain, Martz, and Rodriguez and (2) Local Police Defendants of the City of Jacksonville, Jackson County, individual defendants Towe and Winters, John Does 2-20, and the Municipal Doe Defendants. (SAC ¶ 29-30.)
Section 1983 provides a civil action against persons who violate an individual's constitutional rights. Federal employees sued in their individual capacities may be sued for damages as well as declaratory or injunctive relief. Hafer v. Melo, 502 U.S. 21, 31 (1991). Individuals sued in their official capacities may only be sued for declaratory or injunctive relief. Ex Parte Young, 209 U.S. 123 (1908). Further, a state is not a person for the purposes of this section, but case law, however, treats municipal and local governments as "persons" under the statute and subject to damages and declaratory or injunctive relief.Monell v. Dept. of Social Services of New York, 436 U.S. 658, 701 (1978). Because all injunctive relief claims were dismissed in the 2007 R R, Plaintiffs' remaining Fourth Amendment claims under § 19983 are for damages against Defendants Rodriguez, Ruecker, Towe, Winters, Jackson County, and the City of Jacksonville.
State Police Defendants move to dismiss the claim against them for failure to state a claim. The City of Jacksonville Defendants move for summary judgment on Plaintiffs' Fourth Amendment claims. As previously noted, the court holds the summary judgment motion in abeyance pending the close of discovery. It does consider the City of Jacksonville Defendants' motion under the Rule 12(b)(6) standards.
A. State Police Defendants' Motion to Dismiss the § 1983 Fourth Amendment Claim Is Denied
State Police Defendants argue that Plaintiffs' claim for Fourth Amendment violations should be dismissed because the SAC does not allege personal conduct of Defendants Ruecker and Rodriguez to meet the pleading requirements for a § 1983 claim under Rule 8 and there is no liability because they have qualified immunity. Plaintiffs have plausibly pled a § 1983 Fourth Amendment claim.
The court analyzes State Defendants' motions under theIqbal standard explained above. Plaintiffs must state a claim that is plausible on its face. A § 1983 claim must allege personal conduct of the named defendants in order to allege liability. (See V.B, supra.) While supervisory liability is inapplicable, Plaintiffs may allege Ruecker and Rodriguez are liable for the actions of their subordinates if they plausibly allege one the bases for liability set forth inal-Kidd, 580 F.3d at 965 (imposing liability for actions of subordinates "(1) for setting in motion a series of acts by others . . . which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; [and] (4) for conduct that shows a `reckless or callous indifference to the rights of others") (internal citations and quotations omitted).
State Defendants move to dismiss, asserting that personal conduct allegations are "virtually nonexistent" and they have qualified immunity. (State Defs.' Mem. in Supp. 20.) The court disagrees. When assuming the non-conclusory factual allegations as true for the purposes of this motion to dismiss, there are sufficient allegations to state a plausible claim.
Plaintiffs allege that State Defendants used unreasonable force in relocating anti-Bush demonstrators who were demonstrating peacefully, lawfully and exercising their protected First Amendment rights. (SAC ¶ 45, 59-62.) Their allegations provide context for the events that day and allege that the anti-Bush demonstrators made efforts to cooperate with law enforcement officers and sought to plan and participate in a lawful demonstration.
Plaintiff Elkovich told Defendants that parents and their young children were expected to participate, that she wanted to avoid any possible problems, and that the demonstration was to be peaceful and law-abiding, with handouts to participants so informing them. Plaintiff Elkovich also emphasized that due to the law-abiding nature of the gathering, riot-geared police would not be necessary and asked that they not be present. Defendant Towe assented to the route and location of the demonstration and said he did not plan to use riot-geared police.
(SAC ¶ 39.)
Plaintiffs allege, however, that when the State Defendants were instructed to relocate the anti-Bush demonstrators, all Defendants went too far.
Police Defendants and their police officers, including officers clad in riot gear, forced the anti-Bush demonstrators to move east along California Street, in some cases by violently shoving Plaintiffs . . . and striking them with clubs and firing pepper spray bullets at them. . . . After moving [anti-Bush demonstrators] across Fifth Street, the Police Defendants divided [anti-Bush demonstrators] into two groups, encircling each group and preventing [anti-Bush demonstrators] from leaving the area. Some . . . including those with young children, were attempting to leave the area. Several families had become separated, including children; some of whom were lost, frightened and traumatized as a result of the Police Defendants' actions.
(SAC ¶ 60-61.)
Further, Plaintiffs allege,
The Police Defendants' actions and the actions of the police officers in using overwhelming and excessive force, including the use of officers clad in riot gear, against unarmed, law-abiding peaceful demonstrators exercising their core First Amendment rights . . . were the custom, policy or practice of the State of Oregon and Defendants City of Jacksonville and Jackson County and Municipal does respectively, or were established as such by the individual Police Defendants in taking those actions. The individual Police Defendants had the final decisionmaking authority and responsibility for establishing the policies of their respective employers. The individual Police Defendants' decisions to order and implement the aforesaid police actions constituted the official policy of their respective public employers. . . . The Defendants' actions against
Plaintiffs . . . in the use of overwhelming and constitutionally excessive force against them were the result of inadequate and improper training, supervision, instruction and discipline . . . of the police officers under the personal directions of the State and Local Police Defendants. Such inadequate and improper training, supervision, instruction and discipline are the custom and practice of the Defendants. By the practice or custom of failing to adequately and properly train, supervise, instruct or discipline their police officers, the Defendants have directly caused the violations of rights that are the subject of this action.
(SAC ¶ 97-99.)
Taking these non-conclusory factual allegations as true, Plaintiffs have plausibly alleged that their Fourth Amendment rights were violated. Assessing the quantum of force and measuring the government interest at stake here, Plaintiffs have alleged that the use of force, namely use of violent shoving, strikes with clubs, and use of pepper spray, was unreasonable.
Undoubtedly, the government interest is high in this case; few would argue that the safety and security of the President should not be of great concern. However, given the specific circumstances here — a peaceful, planned, multi-generation demonstration — Plaintiffs have plausibly alleged the force used to relocate the group went too far.
For instance, Plaintiffs' factual allegations show that the anti-Bush demonstrators did not pose a greater risk to the security of the President as other individuals in the area or to the officers. See Davis 478 F.3d at 1054. In addition, the factual allegations suggest that other methods could have been employed to relocate the group. See id. Plaintiffs assert that Police Defendants did not communicate with the demonstration organizers about the need to move the location and Plaintiffs assert that the Police Defendants began moving the demonstrators "[w]ithout attempting to determine whether the assemblage understood the announcements, and without allowing time for the class of about 200 to 300 persons crowded on the sidewalks to move." (SAC ¶ 60.) Considering these allegations under the framework of Davis andGraham and accepting the factual allegations as true for the purpose of this motion, the court finds the use of force was not reasonable.
State Defendants argue there is no § 1983 claim because Plaintiffs have not alleged personal conduct and are seeking liability through supervisor liability: "it appears to be plaintiffs' view that Rodriguez and Ruecker are liable because they were responsible for the conduct of those they supervised, and not because of any injury or other constitutional deprivation that they personally rendered." (State Defs.' Mem. in Supp. 18.)
The court disagrees. Plaintiffs have alleged sufficient personal conduct to state a claim against the State Police Defendants. As set forth in al-Kidd, an official may be held liable for culpable action or inaction in training, supervision, or control of subordinates. 580 F.3d at 965. Plaintiffs have alleged that actions taken against the anti-Bush demonstrators were "overwhelming and constitutionally excessive force" and that they were a "result of inadequate and improper training, supervision, instruction and discipline." It is plausible on the face of the complaint that officers who use excessive force in the circumstances described here have had inadequate training as to what is necessary and appropriate force to relocate peaceful demonstrators.
Allegations also support that State Police Defendants may be held liable for setting into motion a series of acts that they knew or should have known would result in the use of excessive force. See id. Plaintiffs assert that the officers employing the alleged excessive force were under the personal direction of the State Police Defendants. It goes without saying that officers will be taking directions and orders from their superiors. Such directions, including that officers use riot gear on a peaceful group of demonstrators, could plausibly set into motion the course of events that resulted in the injury here. While it may give further support to their claim to have allegations as to training manuals or verbatim instructions, at this stage in the litigation, it is not necessary.
Plaintiffs have plausibly alleged that State Defendants used excessive force to move a group of peaceful demonstrators. Plaintiffs have asserted that officers who forcibly relocated the group were under the direction of the State Defendants. They have plausibly alleged personal conduct of State Police Defendants to be held liable under § 1983.
2. State Defendants Do Not Have Qualified Immunity
State Defendants assert qualified immunity, and they argue that Plaintiffs cannot meet the second prong: "Even under the `peaceful' circumstances alleged by plaintiffs, these officers reasonably could have believed that the degree of force used was appropriate in carrying out their duties." (State Defs.' Mem. in Supp. 26.) The court disagrees.
Following the steps from Saucier outlined in preceding sections, Plaintiffs have met the first prong of the qualified immunity inquiry by plausibly alleging State Defendants' personal conduct violated their Fourth Amendment rights. For the claim to survive, they must further allege that their right to be free of excessive force was sufficiently clear such that a reasonable officer would know that his conduct violates their rights. See Saucier, 533 U.S. at 202.
The court in Saucier discussed the definition of "reasonableness" in the second prong of the quality immunity inquiry. "The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. . . . An officer might correctly perceive all the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances." Id. at 205. In Saucier, the demonstrator alleged that a police officer used excessive force when he grabbed plaintiff, took him to a military van, and pushed or shoved him inside. At the time this occurred, the demonstrator was attempting to hang a banner at a national park where the Vice President of the United States was in attendance. He had hidden the banner from view knowing that it was not permitted and was attempting to display the banner on a barrier that separated the public from a secure area when he was intercepted by police. Id. at 206.
The court concluded, based on the specific circumstances, that the police officer's actions were "within the bounds of appropriate police responses."
[Police officer] did not know the full extent of the threat [the demonstrator] posed or how many other persons there might be who, in concert with [the demonstrator] posed a threat to the security of the Vice President. There were other potential protestors in the crowd, and at least one other individual was arrested and placed into the van. . . . It cannot be said there was a clearly established rule that would prohibit using the force [police officer] did to place [the demonstrator] into the van to accomplish these objectives.
Id. at 208-09.
The circumstances here are simply not the same. Here, Plaintiffs communicated with
Police Defendants prior to the demonstration, seeking to inform them of their plans and confirm that the demonstration would be lawful. Plaintiffs identified themselves as demonstrators, notified Police Defendants of their size and intent, and obtained approval for the time, place, and route of their demonstration. (SAC ¶ 39.) Plaintiffs took no affirmative action to threaten the security of the President. The threat they posed was based on their proximity to the President and not on some questionable, potentially threatening action of deliberately approaching a security barrier. (SAC ¶ 54.) Their peaceful demonstration, however was met by police officers who were "forcefully [moving anti-Bush demonstrators] from where they were demonstrating, using clubs, pepper spray bullets, and forceful shoving." (SAC ¶ 61.) After the relocation to Fifth Street, the group was divided and encircled, preventing some from leaving and separating family members, including small children. (SAC ¶ 61.) As alleged and for the purposes of this motion, the circumstances support Plaintiffs and their assertion that a reasonable officer would know such force on this group was unreasonable.
Plaintiffs' have alleged a plausible § 1983 claim for violation of the Fourth Amendment rights against State Police Defendants, and these defendants are not entitled to qualified immunity.
B. City Defendants' Motion to Dismiss the § 1983 Fourth Amendment Claim Is Denied
Allegations of City Defendants' actions that violated Plaintiffs' Fourth Amendment rights are nearly identical to allegations of the State Defendant actions. (SAC ¶ 96-99.) Plaintiffs seek relief from Defendant Towe under § 1983 for actions taken in his individual capacity. For the same reasons that State Defendants Ruecker and Rodriguez may be held liable for Fourth Amendment violations in their individual capacities, so may Defendant Towe. Allegations support that Defendant Towe may be held liable for setting into motion a series of acts that they knew or should have known would result in the use of excessive force.
Plaintiffs also seek relief from the Defendant City of Jacksonville under § 1983. As previously explained, a municipality may be held liable under § 1983 if the custom and practice or official policy is alleged to have violated constitutional rights. Monell, 436 U.S. at 694-95; see Part V.C. Liability results when such custom or policy "may fairly be said to represent official policy." Id.
Plaintiffs have not plausibly stated a Monell claim. Though they cite the elements of such a claim in their complaint, allegations are no more than a formulaic recitation and are not entitled to the presumption of truth, under Iqbal. 129 S.Ct. at 1951. Barely stating that "the individual Police Defendants' decisions to order and implement the aforesaid police actions constituted the official policy of their respective public employers" is simply not enough. Section 1983 claims against City of Jacksonville, therefore, should be dismissed.
VII. Claims for Violation of Oregon Constitution
Plaintiffs' third claim seeks relief from County and City Defendants for violations of rights under the Oregon Constitution. (SAC ¶ 112-115.) The court's 2007 R R dismissed this claim. (2007 R R 2.) Relying on the Oregon Supreme Court decision Hunter v. City of Eugene, 309 Or. 298 (1990), the court explained that "persons whose rights under Article I, Section 8 of the Oregon Constitution are violated may not bring an action for damages directly under the constitution, but are limited to existing common law, equitable and statutory remedies." (2007 R R 36.) The court's previous decision is unchanged, and Plaintiffs' third
claim for relief is dismissed.
VIII. Claims for Oregon Common Law Violations
Plaintiffs' fourth claim seeks relief from City and County defendants for violation of Oregon common law for assault, battery, false imprisonment, and negligence. (SAC ¶ 116-18.) City Defendants move for summary judgment on this claim.
Plaintiffs pled similar if not identical claims in their FAC, and City Defendants moved for summary judgment in 2007. On April 22, 2007, the court held the motion for summary judgment in abeyance pending the completion of discovery at the request of Plaintiffs' counsel. (Dkt. No. 103.) The court also stayed the discovery deadline on August 15, 2007. (Dkt. No. 129.)
Plaintiffs' claims for Oregon common law violations are fact-intensive, and entering judgment on these claims without providing the opportunity to complete discovery would be premature and unfair to both parties. The court holds City Defendants' current motion for summary judgment in abeyance, as to claims remaining claims.
IX. Conclusion
Consistent with the 2007 R R, all prospective and injunctive relief claims, all Fifth and Fourteenth Amendment claims, claims against Defendant Basham, Bivens claim against Federal Defendants for Fourth Amendment violations, and all claims for violation of the Oregon Constitution are dismissed.
Defendants' motions are granted in part, dismissing the following claims:
Against State Defendants: § 1983 claim for violation of Plaintiffs' First Amendment rights against defendant Ruecker and Rodriguez in their individual capacities.
Against City of Jacksonville Defendants: § 1983 claim for violation of Plaintiffs' First Amendment rights against Defendant Towe in his individual capacity and the City of Jacksonville and § 1983 claim for violation of Plaintiffs' Fourth Amendment Rights against City of Jacksonville.
Thus, remaining claims include:
Against Federal Defendants: Bivens claim for violation of Plaintiffs' First Amendment rights against defendants Wood and Savage in their individual capacities.
Against State Defendants: § 1983 claims for violation of Plaintiffs' Fourth Amendment rights against defendant Ruecker and Rodriguez in their individual capacities.
Against County Defendants: § 1983 claims for violation of Plaintiffs' First and Fourth Amendment rights and claims for relief under Oregon common law.
Against City Defendants: § 1983 claim for violation of Plaintiffs' Fourth Amendment rights against Defendant Towe in his individual capacity and claims for relief under Oregon common law against Defendant Towe and the City of Jacksonville.
X. Recommendation
The motions should be granted in part and denied in part.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. Objections to this Report and Recommendation, if any, are due by August 23, 2010. If objections are filed, any responses to the objections are due within 17 days, see Federal Rules of Civil Procedure 72 and 6. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will
constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.