ANN AIKEN, District Judge
Plaintiff, represented by counsel, filed this case on March 6, 2003, alleging a variety of state and federal claims surrounding plaintiff's arrest, handcuffing and incarceration in the Linn County Jail. On August 7, 2003, plaintiff's counsel filed an Amended Complaint. On September 16, 2003, plaintiff's counsel moved to withdraw as attorney of record for plaintiff due to "irreconcilable conflicts" and a series of "unanswered correspondence." This court granted that motion and allowed plaintiff to proceed pro se. On October 15, 2003, defendants filed the summary judgment motion at issue. The court proceeded over the next 8 months to grant plaintiff a series of extensions of time and continuances to find new counsel and/or file a response to the pending motion. Finally, this court notified plaintiff that any response was due by June 11, 2004, no further extensions of time would be allowed, and if no response was filed, the court would consider the motion unopposed. Now, nearly one month beyond the final date provided to plaintiff for any response, no response has been filed, nor has plaintiff contacted this court, therefore, the court will consider the motion unopposed.
BACKGROUND
Plaintiff alleges that on February 23, 2001, he was arrested, handcuffed and incarcerated in the Linn County Jail. Plaintiff was arrested on the charge of hindering prosecution, which was a felony. Plaintiff was handcuffed by Linn County Detective Rick Burch. Plaintiff was transported from Lebanon, where he was arrested, to the Linn County Jail in Albany, Oregon. He was transported by one deputy. For purposes of officer safety, and plaintiff's safety, plaintiff was handcuffed for the transport period only from Lebanon to Albany. At the Jail, plaintiff met with a Security Release Officer who assisted plaintiff in the release process. The security amount was $6,000 and plaintiff had to provide 10% of that amount, or $600.00 for his release. The 10% figure is standard. In total, plaintiff was in the Linn County Jail for 4 hours on the hindering charge.
Plaintiff seeks monetary damages for alleged violations of the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff's first cause of action alleges a violation of procedural due process rights under the Fifth and Fourteenth Amendments, and a violation of his "privileges and immunities" under the Fourteenth Amendment.
Plaintiff's second cause of action is for an alleged false arrest and use of excessive force. The third cause of action is for an arrest allegedly in retaliation for plaintiff's invocation of his Fifth Amendment right against self-incrimination. Plaintiff's remaining claims, claims 4 through 8, are pendent state law claims for false arrest/imprisonment, assault and battery, intentional infliction of emotional distress, invasion of privacy (false lights), and defamation. Plaintiff also characterizes a "claim" for punitive damages as his ninth cause of action.
STANDARDS
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56©). Substantive law on an issue determines the materiality of a fact. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of a dispute.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630.
DISCUSSION
I. FEDERAL CLAIMS
FOURTH AMENDMENT
I find no violation of plaintiff's Fourth Amendment rights when he was arrested. Probable cause to arrest without a warrant exists when the facts and circumstances known to the arresting officer are sufficient to lead a prudent person to believe the suspect has committed, is committing, or is about to commit a crime. Mackinney v. Nielsen, 69 F.3d 1002, 1005 (9th Cir. 1995). Probable cause is a practical, common sense decision requiring a reasonable belief evaluated in light of the officers' experience and a practical consideration of every day life.Illinois v. Gates, 462 U.S. 213, 231 (1983).
Plaintiff alleges that his excessive force claim is based on his being handcuffed when there was no need for the "application" of handcuffs because the officer was "not under attack." Amended Complaint, para. 13-14. Whether a law enforcement officer used excessive force in the course of an arrest is analyzed under the Fourth Amendment's right to be free from unreasonable seizures of the person. Graham v. Connor, 490 U.S. 386, 375 (1989). The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id.
The issue here is whether Detective Timm, or the subordinate who actually applied plaintiff's handcuffs, acted within a reasonable range of conduct, not whether he might have used a less intrusive degree of force. There is no allegation of any physical condition that would make plaintiff especially sensitive to being handcuffed too tightly; there is not even a claim that the handcuffs were, in fact, applied too tightly. Under these facts, a reasonable officer would not have cause to believe plaintiff was suffering excessive force during the short time handcuffs were applied. Further, there is no allegation of any physical injury suffered by plaintiff due to the use of excessive force by the defendants. The plaintiff's size (over 6' tall and weighing 280 lbs.), the seriousness of the charge, the seriousness of the underlying crime being investigated (murder), the fact that the charge itself involved "hindering" prosecution, all support the conclusion that the minimal use of force in the form of the application of handcuffs, was reasonable as a matter of law.
FOURTEENTH AMENDMENT
I also find no violation of plaintiff's Fourteenth Amendment rights. Plaintiff alleges violation of the Fourteenth Amendment's "privileges and immunities" clause. Amended Complaint, para. 9. That clause provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States[.]" U.S. Const. Amend. XIV, 1. This clause narrowly applies to privileges and immunities of federal citizenship such as the right of citizens to vote in federal elections, the right to enter public lands, and to petition Congress.
This claim fails as a matter of law because the privileges and immunities clause of the Fourteenth Amendment protects only non-residents. Supreme Court of Virginia v. Friedman, 487 U.S. 59, 64 (1988). See also, United Bldg. Const. v. Mayor Council of Camden, 465 U.S. 208, 216 (1984) (in-state residents have "no claim under the Privileges and Immunities Clause").
DUE PROCESS
Plaintiff cannot assert a valid claim under the Fifth Amendment. The Fifth Amendment is not applicable where, as here, the defendant is a state actor. American Bankers Mortgage Corp. v. Federal Home Loan Mortgage Corp., 75 F.3d 1401, 1406 (9th Cir. 1996).
To prevail on a procedural due process claim, plaintiff must establish: "(1) a liberty or property interest protected by the constitution; (2) a deprivation of the interest by the government; and (3) lack of process." Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (internal quotation omitted). The Fourteenth Amendment protects only against deprivations of liberty that are carried out without due process. Adequate process generally requires notice and a hearing before the deprivation. Perkins v. City of West Covina, 113 F.3d 1004, 1010 (9th Cir. 1997), rev'd on other grounds, 525 U.S. 234 (1999). Plaintiff has failed to identify any protected liberty interest or property interest that was lost or taken by defendants without notice or hearing. In support of his claim, plaintiff alleges that there was "no need for arrest," that a citation to appear was an "available remedy." However, a state law providing a police officer discretion to issue a citation in lieu of an arrest creates no constitutional right not be arrested and processed. Higbee v. City of San Diego, 911 F.2d 377 (9th Cir. 1990).
I further find that plaintiff received all of the due process to which he was entitled. A police officer's assessment of probable cause provides legal justification for arresting a person suspected of a crime and for a brief period of detention to take the administrative steps incident to arrest. Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975). Here, while incarcerated at the Linn County Jail, plaintiff telephoned his daughter, who posted the standard 10% security release. Plaintiff was assisted in this regard by a release officer. Plaintiff was released from Jail approximately four hours after having been incarcerated. FIFTH AMENDMENT
Plaintiff alleges that he was arrested for the "sole reason" that he exercised his right against self-incrimination. Amended Complaint, para. 6. Because this court found probable cause for arrest, plaintiff's retaliation theory is irrelevant. Further, plaintiff was not appearing under a subpoena, nor was he under oath when he spoke to the police officers. The privilege against self-incrimination protects only against certain types of compelled disclosures. Compulsion or coercion is a necessary element. Plaintiff had no valid exercise of Fifth Amendment privilege against compelled self-incrimination. I find no evidence that plaintiff's arrest caused plaintiff to surrender or relinquish his Fifth Amendment rights. He was never compelled by the arrest to be a witness against himself.
SECTION 1983 MUNICIPAL LIABILITY
Plaintiff attempts to impose section 1983 liability on Linn County and the Linn County Sheriff's Office, alleging that they "are responsible for the acts of defendant Timm performed in the course and scope of his employment. Defendant Timm knew or should have known the arrest of plaintiff was unlawful." Amended Complaint, para. 5.
A municipality is only liable under section 1983 for constitutional violations caused by official policy or a longstanding practice or custom. Christie v. Iopa, 176 F.3d 1231 (9th Cir. 1999). Under section 1983, claims may be imposed on municipalities only when their official policies or customs caused their employees to violate another's constitutional rights. There is no respondeat superior liability for a municipality under 42 U.S.C. § 1983.
To establish municipal liability, a plaintiff must show that: (1) he possessed a constitutional right of which he was deprived; (2) the municipality has a policy; (3) the policy amounts to a deliberate indifference to plaintiff's constitutional rights; and (4) the policy was the moving force behind the constitutional violation. Plumeau v. School Dist. No. 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (internal citation omitted). I find that plaintiff has failed to establish municipal liability. Further, I note that proof of a single incident of unconstitutional activity is not sufficient to impose municipal liability under Monell unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, a policy attributable to a municipal policymaker. Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985). There are no facts here that support such a charge.
Finally, I note that the Linn County Sheriff's Office is not a "person" subject to liability under section 1983. Municipal departments, commissions and associations, such as police, sheriff and corrections departments cannot be sued under section 1983. Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995); andDean v. Barber, 951 F.2d 1210 (11th Cir. 1992) (county sheriff's department cannot be sued under section 1983).
SECTION 1983 INDIVIDUAL LIABILITY
Plaintiff alleges that Detective Timm was an employee of Linn County whose acts "were undertaken in the regular course" of his employment. Plaintiff does not allege that Detective Timm was acting in any other than his official capacity. A suit against an officer in "his official capacity" is the same as a suit against the entity of which the officer is an agent. McMillian v. Monroe County, Ala., 520 U.S. 781, 785 n. 2 (1997). Therefore, I find no individual liability for Detective Timm and plaintiff's section 1983 claim fails in this regard.
In sum, defendants are entitled to summary judgment on each of plaintiff's federal claims against each of the defendants. I find no violation of plaintiff's procedural due process rights under either the Fifth or Fourteenth Amendments; I find no violation of plaintiff's "privileges and immunities" under the Fourteenth Amendment, I find no violation of plaintiff's Fourth Amendment rights for either false arrest or use of excessive force; and finally I find no violation of plaintiff's Fifth Amendment right against self-incrimination. Because I find that defendants are entitled to judgment as a matter of law on each of plaintiff's federal claims, I deny as moot plaintiff's request ("claim") for punitive damages.
II. STATE CLAIMS
Plaintiff's remaining five claims (claims 4-8) are based on this court's pendent state law jurisdiction. This court declines to exercise supplemental jurisdiction over any remaining state law claim against the defendants. Title 28 U.S.C. § 1367 provides the basis for supplemental jurisdiction:
Except as otherwise provided in subsection (b) and ©) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
Subsection ©) of 28 U.S.C. § 1367 gives the court discretion to "decline to exercise" supplemental jurisdiction in various circumstances including when "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367©) (3).
That is exactly the situation at bar. Here, defendants have filed a summary judgment motion on each of plaintiff's federal claims, which the court has granted. This court declines to exercise jurisdiction over any remaining state law claims. Therefore, this complaint is dismissed in its entirety.
CONCLUSION
Defendants' motion for summary judgment (doc. 19) is granted. The court notes that this motion is unopposed and that this case has stood, without prosecution, for over 8 months. Therefore, this case is dismissed and all pending motions are denied as moot.
IT IS SO ORDERED.