Richard R. Meneghello, OSB #96361 Email Address...

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

FISHER & PHILLIPS LLP 111 SW Fifth Ave., Ste. 4040

Portland, Oregon 97204 (503) 242-4262

Portland 118148.2

Richard R. Meneghello, OSB #96361 Email Address: [email protected] Erin O. Sweeney, OSB #106632 Email Address: [email protected] FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 Telephone (503) 242-4263 Facsimile Attorneys for Defendants Craig Junginger, Dale Cummins and the City of Gresham

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

JASON SERVO, Plaintiff, v. CHIEF CRAIG JUNGINGER, CAPT. DALE CUMMINS, and CITY OF GRESHAM, a political Subdivision of the State of Oregon. Defendants.

Case No. 3:13-cv-00702-PK

MEMORANDUM IN SUPPORT OF

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

ORAL ARGUMENT REQUESTED

Case 3:13-cv-00702-PK Document 41 Filed 03/31/14 of 32 Page ID#: 214

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TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................. 1

II. FACTUAL BACKGROUND ............................................................................................ 2

A. Plaintiff Crashes a City-owned Car and Is Arrested for DUII. ........................................ 2

B. GPD Advises Plaintiff of the Potential Charges Against Him and Begins a Thorough Internal Affairs Investigation. ...................................................................... 4

C. The GPD Conducts a Thorough Internal Affairs Investigation and Provides Plaintiff with All Necessary Due Process Along the Way. ............................................................ 6

D. Chief Junginger Provides Plaintiff with Notice of His Intent to Terminate Plaintiff’s Employment. .................................................................................................................... 7

E. After Meeting with Plaintiff, Chief Junginger Terminates Plaintiff’s Employment, and Plaintiff’s Union Decides Not to Pursue a Grievance on His Behalf. ............................. 8

III. SUMMARY JUDGMENT STANDARD .......................................................................... 9

IV. CLAIMS ASSERTED ...................................................................................................... 10

V. POINTS AND AUTHORITIES ...................................................................................... 11

A. Plaintiff Was Afforded Every Sufficient Element of Procedural Due Process Throughout the Investigation and His Termination. ...................................................... 11

1. Defendants Provided Plaintiff with the Key Components of Due Process Prior to His Termination. ........................................................................ 11

a) Plaintiff admits he was provided various notices of the charges being investigated which resulted in his termination. .................................. 12

b) Plaintiff admits he was provided the evidence that resulted in his termination. .................................................................................................. 13

c) Plaintiff admits he had an adequate opportunity to address the charges and investigation evidence prior to his termination. ........................................... 14

2. Plaintiff Had Additional Due Process Protections Available Through the GPOA and Collective Bargaining Agreement ...................................................... 15

3. Plaintiff’s Theories Regarding His Alleged Denial of Due Process Are Not Grounded in Evidence or Reality. ........................................................... 17

4. Chief Junginger and Captain Cummins Are Shielded by Qualified Immunity. .... 19

B. Plaintiff’s Allegations Do Not Form a Proper Monell Claim Because He Raises No Triable Issues Regarding the Conduct Leading to His Termination. ............................. 20

1. Plaintiff Admitted that His Due Process Concerns Began at the Time of the Investigation, Foreclosing the Opportunity to Bring a Monell Claim Against the City. ............................................................................. 21


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2. Chief Junginger’s and Captain Cummins’ Discretionary Decisions Regarding Plaintiff Did Not Rise to the Level of Official Government Policy. ...................... 22

a) Chief Junginger and Captain Cummins Were Not Final Policymakers. ..... 22

b) There Is No Evidence that Either Cummins or Junginger Deliberately or Recklessly Disregarded Plaintiff’s Rights. .............................................. 24

VI. CONCLUSION ................................................................................................................. 25


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TABLE OF AUTHORITIES

Cases

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); ................................................................................................................. 21

Al Haramain Islamic Found, Inc. v. U.S. Dep't of Treasury, 686 F.3d 965 (9th Cir. 2012) ..................................................................................................... 12

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1985) .............................................................................................................. 9, 10

Armstrong v. Meyers, 964 F.2d 948 (9th Cir. 1992) ..................................................................................................... 16

Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) .............................................................................................................. 19

Barton v. City of Portland, 242 F.Supp 2d 893 (D. Or. 2002) .............................................................................................. 10

Basso v. City of West Covina, 86 F.3d 1161 (9th Cir. 1996) ..................................................................................................... 19

Bishop v. Wood, 426 U.S. 341 (1976) .................................................................................................................. 10

Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971 (9th Cir. 1998) ..................................................................................................... 14

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................................................................... 9

Christie v. Iopa, 176 F.3d 1231 (9th Cir. 1999) ................................................................................................... 23

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ............................................................................................................ 11, 14

Collins v. City of San Diego, 841 F.2d 337 (9th Cir. 1988) ............................................................................................... 22, 23

Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992) ....................................................................................... 20, 22, 23

Hammond v. County of Madera, 859 F.2d 797 (9th Cir. 1988) ...................................................................................................... 24

Hufford v. McEnaney, 249 F.3d 1142 (9th Cir. 2001) ................................................................................................... 14


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Kopf v. City of Sweet Home, 2007 U.S. Dist. LEXIS 74234 ................................................................................................... 16

Ludwig v. Astrue, 681 F.3d 1047 (9th Cir. 2012) ................................................................................................... 11

Matthews v. Eldridge, 424 U.S. 319 (1976) .................................................................................................................. 14

Matthews v. Harney County, Or., Dist. No. 4, 819 F.2d 889 (9th Cir. 1987) ..................................................................................................... 13

Monell v. Dept. of Social Services, 436 U.S. 658 (1978) .................................................................................................................. 20

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) .................................................................................................................. 22

St. Louis v. Praprotnik, 485 U.S. 112 (1988) .................................................................................................................. 21

Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989) ................................................................................................... 21

Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996) ....................................................................................................... 21

Tsao v. Desert Palace, Inc., 698 F.3d 1128 (9th Cir. 2012) ................................................................................................... 10

Ward v. Bolek, Case No. 3:12-cv-00136-SI (D. Or. Feb. 27, 2014) .................................................................. 11

Statutes

42 U.S.C. § 1983 ..................................................................................................................... 10, 20

ORS § 813.100 ................................................................................................................................ 4

Rules

FRCP 56 .......................................................................................................................................... 9

FRCP 56(c) ..................................................................................................................................... 9

FRCP 56(e) ..................................................................................................................................... 9




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I. INTRODUCTION

Plaintiff Jason Servo, who was a Detective with the City of Gresham (the “City”), admits

that he drank so much alcohol on the evening of January 28, 2011, and into the early morning

hours of January 29, that he became severely intoxicated and has no clear recollection of his

actions. Plaintiff admits that he then drove away from the bar where he had been drinking and

crashed into a ditch over 8 miles away. Plaintiff admits that the vehicle he drove that night

happened to be the City-owned car that had been assigned to him as an active member of the

Gresham Police Department (“GPD” or the “Department”). Plaintiff admits that he was arrested

after crashing the City’s car and refused to take a Breathalyzer test; and Plaintiff admits that he

was charged with DUII as a result of his actions.

Over the course of the next several months, the GPD conducted an internal affairs

investigation into the incident, and not surprisingly, it concluded that Plaintiff drank to excess,

drove a City-owned vehicle while intoxicated, crashed that car into a ditch, was arrested, refused

to take a Breathalyzer test, and was charged with DUII. Before making any decision about his

employment, GPD offered Plaintiff a variety of required written notices and in-person meetings

apprising him of the status of the investigation, presenting him with the evidence that had been

found during the investigation, providing him with the conclusions that had been reached, and

offering him the opportunity to provide any rebuttal or contrary evidence. Throughout the entire

process, Plaintiff was represented by his Union, the Gresham Police Officers Association

(“GPOA” or the “Union”). At the conclusion of the investigation, the City terminated Plaintiff’s

employment for violating several clear rules and policies (all such violations were admitted by

Plaintiff).

Now, despite the fact that Plaintiff admits to engaging in the same conduct that led to his

termination, and despite the fact that Plaintiff admits that even the most perfect investigation

possible would have also concluded that he drank to excess, drove a City-owned vehicle while

intoxicated, crashed that car into a ditch, was arrested, refused to take a Breathalyzer test, and




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was charged with DUII, Plaintiff alleges he was improperly terminated and denied due process

by his former employer and supervisors, Chief of Police Craig Junginger and Deputy Chief Dale

Cummins.1 He alleges, among other things, that Defendants conducted “secret meetings” and

conspired with his Union to terminate him, although no evidence of such meetings have

surfaced. Unfortunately for Plaintiff, the only reality in this case – and one that he himself

admits – demonstrates that Defendants provided him with every procedural process required by

law and that he was terminated because of his own reckless conduct. As a result, summary

judgment on both of his claims should be granted.2

II. FACTUAL BACKGROUND

Plaintiff was hired by the City on about June 28, 1999, as an Entry Level Police Officer

with the GPD. (Declaration of Craig Junginger in Support of Defendants’ Motion for Summary

Judgment (“Junginger Dec.”), ¶4, Exhibit (“Exh.”) A.) In about 2006, Plaintiff was promoted to

the position of Detective and also worked as the Department’s Lead Firearms Instructor.

(Junginger Dec. ¶¶5-6, Exhs. B-C; Deposition of Plaintiff Jason Servo, attached as Exh. A to the

Declaration of Richard R. Meneghello, ¶2 (referenced herein as “Pl. Dep.”) at 54:3-10.)

A. Plaintiff Crashes a City-owned Car and Is Arrested for DUII.

On January 28, 2011, Plaintiff attended an off-site firearms training course with other

GPD officers in Troutdale, Oregon. (See Plaintiff’s First Amended Complaint, Dkt# 22

(“Complaint”), ¶11; Junginger Dec., ¶¶7-9, Exhs. D-F.) After the training concluded, Plaintiff

joined several other GPD officers for dinner and drinks at McMenamins Edgefield, a large hotel

and entertainment complex that contains several bars and restaurants and was next door to the

training site. (Complaint, ¶¶12-13; Junginger Dec., ¶¶7-9, Exhs. D-F; Pl. Dep. 19:4-20:4.)

1 At the time of the incident and Plaintiff’s termination, Dale Cummins was a Captain with the GPD but has since been promoted to the position of Deputy Chief. See FN 4 for additional background information. 2 Plaintiff’s First Amended Complaint (“Complaint”) contains three claims for relief: two claims under 42 U.S.C. § 1983 and a breach of contract claim. However, the Court granted Defendants’ Partial Motion to Dismiss the breach of contract claim on August 22, 2013. (Dkt.# 34).




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Plaintiff drove to the training that day in his GPD “take home” car, a Chevy Blazer that was

owned by the City and provided to Plaintiff for the purpose of his handling on-call responses and

commuting to work. (Complaint, ¶16; Junginger Dec., ¶¶7-10, Exhs. D-G; Pl. Dep. 82:2-11.)

Under the City’s administrative regulations, City-owned vehicles are to be used for official use

only and employees are not allowed to use them for non-incidental personal matters. (Junginger

Dec. ¶10, Exh. G.) Prior to heading to Edgefield, several other officers returned to the GPD’s

station to drop off gear and retrieve their personal vehicles. (Junginger Dec. ¶7, Exh. D.)

Plaintiff chose otherwise and decided to drive the City-owned Blazer to Edgefield from the

training course for his personal use, with the intention of later driving home after the festivities.

(Complaint, ¶16; Junginger Dec. ¶¶6-11, Exhs. C-H; Pl. Dep. 82:7-9, 83:6-9.)

Starting at approximately 4:00 p.m., over the course of the evening, Plaintiff drank so

much alcohol that he lost recollection of most of the night’s events. (Complaint ¶15; Junginger

Dec. ¶¶6-7 and 11, Exhs. C-D and H; Pl. Dep. 19:4-20:10, 21:3-6, 22:20-25, 96:12-15.) He

cannot even properly estimate the amount of alcohol he consumed over the course of

approximately eight hours. (Junginger Dec. ¶¶6 and 11, Exhs. C and H.) Despite his severely-

intoxicated state, at approximately 12:00 a.m., Plaintiff attempted to drive his City car home and

ended up running off the road, crashing into an irrigation ditch between 8 to 10 miles away from

Edgefield. (Complaint, ¶18; Junginger Dec. ¶¶6-9 and 11-13, Exhs. C-F and H-J; Pl. Dep. 20:11-

24.) Deputies from the Multnomah County Sheriff’s Office and Clackamas County Sheriff’s

Office responded to the scene of Plaintiff’s accident at approximately 12:30 p.m., and contacted

the GPD once they determined that Plaintiff was a police officer who crashed a department-

issued car. (Complaint, ¶19; Junginger Dec. ¶¶7, 12-14, Exhs. D, I-K.) Two GPD Sergeants

went immediately to the scene to recover the Department’s equipment and vehicle. (Junginger

Dec. ¶¶7 and 14, Exhs. D and K.) One of the Sergeants, who was then-President of the Union,

also went to the scene to act as Plaintiff’s representative and help Plaintiff. (Deposition of




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Wallace Coon attached as Exh. B to the Meneghello Dec., ¶3 (referenced herein as “Coon Dep.”)

at 52:22-53:23, 54:4-8, 55:12-23, 56:6-16, 57:5-12; 65:24-66:6.)

Plaintiff refused to perform Field Sobriety Tests at the scene of his accident and was

arrested by the Clackamas County Sheriff’s deputy on suspicion of driving under the influence of

intoxicants (“DUII”) (Complaint ¶ 19; Junginger Dec. ¶¶7-9, 12-14, Exhs. D-F, I-K; Meneghello

Dec. ¶4, Exh. C.) Once in custody, Plaintiff refused to submit to a Breathalyzer test and was

issued a citation for DUII and for refusing to submit to the breath test. (Id.) Under Oregon state

law, Plaintiff’s refusal to take this test resulted in the automatic one-year suspension of his

driver’s license. See ORS § 813.100. (Junginger Dec. ¶¶9, 12, Exhs. F and I; Meneghello Dec.

¶4, Exh. C.) For several days after Plaintiff’s accident, local media ran news stories about the

accident and his DUII charge, highlighting the fact that Plaintiff was a GPD member. (Junginger

Dec. ¶15, Exh. L; Pl. Dep. 50:1-51:11.)

B. GPD Advises Plaintiff of the Potential Charges Against Him and Begins a Thorough Internal Affairs Investigation.

On January 31, Gresham Police Chief Craig Junginger approved a formal

recommendation that an internal affairs investigation be initiated into Plaintiff’s accident and

DUII arrest to determine whether the following six internal rules and regulations applicable to

GPD officers were violated3 (referred herein as the “IA”):

General Order (“GO”) 220.100 – Know and Obey Department Orders

GO 210.020 – Conduct Unbecoming a Member

GO 210.100 – Obey the Law

GO 220.090(4) – Intoxicants

GO 410.050 – Operation of Vehicle

3 For the Court’s reference, a copy of the General Orders upon which the IA was based are attached as Exhibit M to the Junginger Dec. at ¶16. A copy of GAR 6.45.020 is attached as Exhibit G to the Junginger Dec.




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Gresham Administrative Rule (“GAR”) 6.45.020 – Use of City Vehicle (a)

Incidental Use.

(Junginger Dec. ¶14, Exh. K; Deposition of Craig Junginger, attached as Exh. D to the

Meneghello Dec. ¶5 (referenced herein as “Junginger Dep.”) at 96:20-97:5; Deposition of Dale

Cummins, attached as Exhibit E to the Meneghello Dec. ¶6 (referenced herein as “Cummins

Dep.”) at 29:1-15.) Chief Junginger assigned Lieutenant Jeffry Hansen to conduct the IA,

selecting him because of his prior experience and training in conducting such investigations.

(Junginger Dec. ¶17, Exh. N; Junginger Dep. 97:19-98:17.) That same day, GPD notified

Plaintiff that he was being placed on a paid administrative leave and issued him a “Charge

Sheet,” notifying him that the IA had been initiated. (Junginger Dec. ¶¶18-19, Exhs. O-P; Pl.

Dep. 178:1-14.) The Charge Sheet listed out the same six rules noted above as ones that he may

have potentially violated. (Junginger Dec. ¶18, Exh. O.)

On February 4, the Union’s president Sergeant Coon notified Chief Junginger, Captain

Dale Cummins4 (second in command at the GPD), and Lieutenant Hansen that Plaintiff would be

entering an alcohol treatment program. (Junginger Dec. ¶20, Exh. Q.) Later that day, Lieutenant

Hansen conducted a brief five-minute initial interview with Plaintiff, with the Union president

Sergeant Coon also in attendance as Plaintiff’s representative. (Junginger Dec. ¶11, Exh. H;

Coon Dep. 93:20-94:7.) Prior to this meeting, Lieutenant Hansen provided Plaintiff and his

Union representative with copies of several documents he had gathered as part of his

investigation, including relevant police reports from the scene of the accident and internal

department memos. (Junginger Dec. ¶11, Exh. H.) Plaintiff was once again informed that there

were six potential rule violations that served as the basis for the IA investigation. (Id.)

4 At the time of the incident and termination, Dale Cummins was a Captain with the Gresham Police Department, and, thus, the First Amended Complaint is brought against “Captain Dale Cummins.” However, he has since been promoted to Deputy Chief. His correct current title is “Deputy Chief Cummins.” (See Junginger Dep. 152:5-8.) For clarity’s sake, he will be referred to as “Captain” in this briefing.




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C. The GPD Conducts a Thorough Internal Affairs Investigation and Provides Plaintiff with All Necessary Due Process Along the Way.

On February 7, Plaintiff began a 21-day in-patient treatment program for alcohol abuse.

(Junginger Dec. ¶20, Exh. Q.) While in treatment, the IA into Plaintiff’s actions continued;

Lieutenant Hansen conducted confidential, recorded interviews with GPD officers who were

present with Plaintiff the night in question, as well as with several staff members who had

encounters with Plaintiff that evening and the witness who first reported Plaintiff’s accident in

his City vehicle. (Junginger Dec. ¶7, Exh. D.) Lieutenant Hansen also reviewed the police

report and other documentation gathered regarding the events of that evening. (Id.)

Lieutenant Hansen finalized the IA’s investigatory interviews in the beginning of April

and prepared a 16-page memorandum summarizing the information and evidence he obtained

during his investigation, which again included the six possible rule violations Plaintiff may have

committed.5 (Id.; Deposition of Jeffrey (sic) Hansen, attached as Exh. F to the Meneghello Dec.

¶7 (referenced herein as “Hansen Dep.”) at 58:9-15.) The GPD provided a copy of this summary

and the underlying evidence supporting the investigation to Plaintiff and the GPOA. (Junginger

Dec. ¶¶6-7, 17, 21, 25, and 27, Exhs. C-D, N, R, V and X.) Several days later, on April 13, after

Plaintiff and his Union representative would have had sufficient time to examine all of the

evidence from the investigation to date, Lieutenant Hansen conducted a second and more

substantive interview of Plaintiff (represented by GPOA representative Matt Fagan and GPOA’s

lawyer Mark Makler) and allowed him to present his version of events. (Junginger Dec. ¶6, Exh.

C.) During the interview, Lieutenant Hansen confirmed that Plaintiff had received and reviewed

5 In addition to confirming that Plaintiff drank excessively, drove a City vehicle while intoxicated, crashed into a ditch, was arrested, and charged for DUII and refusing to take a breath test, the evidence obtained by Lieutenant Hansen during his investigation also revealed that Plaintiff had engaged in a variety of other unacceptable behaviors that evening and early morning. (See Junginger Dec. ¶7, Exh. D.) These extraneous issues were noted in Lieutenant Hansen’s investigation summary, as well as the investigation findings and conclusions prepared by Captain Cummins on April 19, for the sake of thoroughness. (See Junginger Dec. ¶8, Exh. E; Cummins Dep. 33:13-21.) However, as noted by Chief Junginger in his April 28 pre-termination notice, these other matters were not part of his decision-making process when he chose to terminate Plaintiff’s employment, and he did not consider them when making the termination decision. (See Junginger Dec. ¶9, Exh. F.) Chief Junginger confirmed this at his deposition several times. (Junginger Dep. 74:6-75:5, 109:15-110:7, 118:16-19, 134:1-22.)




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this investigation packet. (Id.) He also confirmed, again, the specific General Orders and

administrative rules that were the basis of the charge and investigation, which means Plaintiff

had received notice of the six possible rule violations for at least the fourth time. (Id.)

D. Chief Junginger Provides Plaintiff with Notice of His Intent to Terminate Plaintiff’s Employment.

Under the Department’s Internal Affairs Procedure, General Order 5.9.7, once an

investigation is complete, the investigator is to provide the accused member’s Division

Commander with the documentation of the investigation for review. (Junginger Dec. ¶21, Exh.

R.) The Division Commander is then charged with the responsibility of preparing investigation

findings, including whether the Department order(s) subject to the investigation was violated,

and submitting them to a command grade officer of the Department. (Id.) If the violations are

found to be sustained, the appropriate disciplinary action can then be taken by a command grade

officer. (Id.)

After Plaintiff’s investigatory interview was concluded, Lieutenant Hansen delivered the

results to Captain Cummins, who was Commander over Investigations in the unit Plaintiff

worked. (Junginger Dec. ¶¶8, 17, Exhs. E, N; Hansen Dep. 58:9-59:18) On April 19, 2011,

Captain Cummins prepared a written memorandum that contained his specific conclusions,

findings and recommendations for appropriate action and delivered the memo to Chief

Junginger. (Junginger Dec. ¶8, Exh. E; Cummins Dep. 33:9-21, 36:9-17, 41:8-42:1) Captain

Cummins’ investigatory findings concluded that evidence existed to sustain all six changes

against Plaintiff, and recommended that the appropriate discipline be termination of

employment. (Id.; Cummins Dep. 32:22-33:1, 33:9-21, 36:9-17.)

After reviewing the underlying IA investigation file prepared by Lieutenant Hansen and

the findings and recommendations prepared by Captain Cummins, Chief Junginger agreed with

Captain Cummins’ recommendation. (Junginger Dec. ¶9, Exh. F; Junginger Dep. 90:9-18,

135:9-18, 152:3-23.) On April 26, Chief Junginger sent Plaintiff a one-page letter entitled




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“Notice of Intent to Discipline,” which informed Plaintiff that: (a) Chief Junginger had

concluded that Plaintiff committed violations of all six of the charges which had been

investigated, (b) he intended to terminate Plaintiff’s employment as a result, and (c) outlined

Plaintiff’s right to a pre-discipline meeting. (Junginger Dec. ¶22, Exh. S; Pl. Dep. 179:3-10).

Chief Junginger also called Plaintiff on the telephone to inform him of this decision. (Pl. Dep.

172:8-13, 174:16-175:10.) On April 28, Chief Junginger sent Plaintiff a five-page letter entitled

“Notice of Charges and Due Process Meeting” that substantively laid out the facts determined by

the IA and further provided the relevant policies involved in the IA, the specific conduct upon

which Chief Junginger based his decision to terminate, additional issues and facts that came up

during the IA that caused concern, and Plaintiff’s notice of his right to a due process pre-

termination meeting. (Junginger Dec. ¶9, Exh. F; Pl. Dep. 180:24-182:13.) Plaintiff was also

provided with a copy of Captain Cummins’ summary and recommendation memo and a copy of

the internal affairs investigation prior to this pre-termination meeting. (Pl. Dep. 176:1-3, 178:15-

23, 182:6-24.)

E. After Meeting with Plaintiff, Chief Junginger Terminates Plaintiff’s Employment and Plaintiff’s Union Decides Not to Pursue a Grievance on His Behalf.

Chief Junginger held the pre-termination meeting with Plaintiff on May 10, 2011,

allowing Plaintiff the opportunity to present any information about the situation that he believed

relevant. (Junginger Dec. ¶23, Exh. T; Pl. Dep. 175:19-25.) Also in attendance was Plaintiff’s

GPOA representative Matt Fagan. (Pl. Dep. 176:4-15.) Critically, Plaintiff did not (and could

not) dispute the investigatory findings that he drank to excess, drove a City-owned vehicle while

intoxicated, crashed that car into a ditch, was arrested, refused to take a Breathalyzer test, and

was charged with DUII. (Pl. Dep. 175:19-183:14.) Further, Plaintiff did not (and could not)

dispute the findings that concluded his actions violated at least six internal rules and regulations

as previously outlined. (Id.) The next day, on May 11, 2011, Chief Junginger sent Plaintiff a




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letter notifying him that he had considered the information Plaintiff provided during the meeting,

and had decided to maintain the decision terminating Plaintiff’s employment. (Junginger Dec.

¶23, Exh. T; Pl. Dep. 183:14-20.)

On May 17, 2011, the GPOA’s President Sergeant Coon notified Chief Junginger that the

Union’s executive board had met to discuss Plaintiff’s termination, discussed the matter with

their counsel Mr. Makler, taken a vote, and decided not to pursue a grievance over Chief

Junginger’s decision to terminate Plaintiff. (Junginger Dec. ¶24, Exh. U; Coon Dep. 96:20-98:2,

100:12-20; Junginger Dep. 160:4-21.) And, although the collective bargaining agreement allows

an individual employee to proceed with a grievance on his or her own behalf, Plaintiff chose not

to do so, instead waiting nearly two years before filing the instant lawsuit. (Junginger Dec. 25¶,

Exh. V.)

III. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure allows the granting of summary

judgment “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.” FRCP 56(c). “[T]he

requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1985) (emphasis in original). The movant has the initial burden of

establishing that no genuine issue of material fact exists or that a material fact essential to the

nonmovant’s claim is absent. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the

movant has met its burden, the onus is on the non-movant to establish that there is a genuine

issue of material fact. Id. at 324.

In order to meet this burden, the non-movant “may not rest upon the mere allegations or

denials of [its] pleadings,” but must instead “set forth specific facts showing that there is a

genuine issue for trial.” FRCP 56(e); see also Celotex, 477 U.S. at 324. An issue of fact is

material if, under the substantive law of the case, resolution of the factual dispute could affect the




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outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they “properly

can be resolved only by a finder of fact because they may reasonably be resolved in favor of

either party.” Id. On the other hand, if after the court has drawn all reasonable inferences in favor

of the non-moving party, “the evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.” Id at 249-50.

IV. CLAIMS ASSERTED

Plaintiff alleges two claims against Defendants under 42 U.S.C. § 1983: (1) a Monell

claim, alleging the City denied him of procedural due process when his employment was

terminated; and (2) a claim alleging that Chief Junginger and Captain Cummins, acting in their

individual capacities, deliberately denied him of his right to procedural due process. To establish

either of these claims, Plaintiff must show both a deprivation of a constitutional or legal right

and a “person” acting under color of state law committed that deprivation. Tsao v. Desert

Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). Plaintiff may believe Defendants’ decisions

were not just, mistaken or outright false, but the Due Process Clause “is not a guarantee against

incorrect or ill-advised personnel decisions” and “the Constitution cannot be interpreted to

require judicial review of every such decision.” Bishop v. Wood, 426 U.S. 341, 349-50 (1976).

Instead, due process claims are only successful if the state fails to provide adequate machinery

for the correction of the inevitable errors that occur in personnel decisions. Barton v. City of

Portland, 242 F.Supp 2d 893, 905 (D. Or. 2002).

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V. POINTS AND AUTHORITIES

As demonstrated herein, Plaintiff’s claims fail for a simple reason: he was afforded

legally sufficient procedural due process prior to his employment being terminated.

A. Plaintiff Was Afforded Every Sufficient Element of Procedural Due Process Throughout the Investigation and His Termination.

The Due Process Clause of the Fourteenth Amendment guarantees that adequate

procedural protections will be provided to an individual whenever a constitutionally protected

interest is threatened. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). To prevail

on his procedural due process claims, Plaintiff must establish: (1) a constitutionally protected

interest; (2) a deprivation of that interest by the government; and (3) the lack of adequate

process. Ludwig v. Astrue, 681 F.3d 1047, 1053 (9th Cir. 2012). Defendants do not deny that

Plaintiff had a constitutionally protected property interest in his employment with the City, and

that this property interest was extinguished when his employment was terminated. However,

there is not a scintilla of evidence demonstrating that Plaintiff was denied legally adequate

procedures or process when his employment was terminated.6

1. Defendants Provided Plaintiff with the Key Components of Due Process Prior to His Termination.

The essential requirements of due process are notice and an opportunity to respond.

Loudermill, 470 U.S. at 546. When a public employee with a property interest in his job is to be

6 As a result of his driver’s license being suspended, Plaintiff was moved to unpaid administrative leave on February 28, 2011, and required to use time from his bank of accumulated leave. (Junginger Dec. ¶26, Exh. W.) The deprivation of accumulated leave has been found to implicate a protected property interest, triggering due process. See Ward v. Bolek, Case No. 3:12-cv-00136-SI, pg.17 (D. Or. Feb. 27, 2014) (attached as Exhibit G to the Meneghello Dec.). Although Plaintiff referenced this switch to unpaid leave in his Complaint, he has failed to raise any allegations that he was denied due process when the change was made. (See Complaint, ¶¶ 24, 37-40, 44-47.) As a result, Defendants’ analysis in this Motion is focused only on the deprivation that occurred when Plaintiff was terminated. Moreover, any attempt to make such an allegation would be fruitless. Plaintiff admits he was covered by the GPOA’s collective bargaining agreement with the City, which contained a three-step grievance and arbitration procedure and would have allowed him or the GPOA to challenge the decision. (See Complaint, ¶¶ 37; Junginger Dec. ¶25, Exh. V.) An employee has constitutionally adequate due process relating to his placement on unpaid leave when a grievance process is available under a collective bargaining agreement, even if the union or employee declines to utilize it. Ward, supra at pg. 20.




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terminated, he is entitled to “oral or written notice of the charges against him, an explanation of

the employer's evidence, and an opportunity to present his side of the story.” Id. There is no

question that Plaintiff was provided such procedures and he readily admits the same.

a) Plaintiff Admits He Was Provided Various Notices of the Charges Being Investigated which Resulted in His Termination.

Plaintiff received more than sufficient notice of the charges against him. Under clear

Ninth Circuit authority, due process only requires notice that is reasonably calculated, under all

of the circumstances, to apprise interested parties of the pendency of the action and afford them

an opportunity to present their objections. Al Haramain Islamic Found, Inc. v. U.S. Dep't of

Treasury, 686 F.3d 965, 982 (9th Cir. 2012). Notice is only deemed to be considered

“insufficient” when an individual does not have adequate information and an opportunity to

correct any errors that may have led to the deprivation. Id. In this case, quite the opposite is

true. Plaintiff admits he had access to a substantial amount of information throughout the

investigation regarding the basis for the IA and his eventual termination. Plaintiff was provided

the “Charge Sheet” on about January 31, 2011, and understood at that point there was an

investigation pending regarding the six rules and regulations listed on the sheet. (Pl. Dep. 178:1-

14.) Plaintiff had access to copies of the rules and regulations identified on the Charge Sheet

through his Union and could have accessed them at any time. (Pl. Dep. 179:18-180:21.) Plaintiff

was reminded of the basis for the IA at the outset of his interview on February 4, 2011, and April

13. (Junginger Dec. ¶¶ 6, 11, Exhs. C and H.)

After the investigation concluded, Plaintiff also received three additional documents that

provided additional notice of these charges:

Captain Cummins’ memorandum detailing his findings on why the six charges should be sustained (Junginger Dec. ¶8, Exh. E; Pl. Dep. 178:15-23.);

Chief Junginger’s April 26 letter regarding his intent to terminate Plaintiff for violating these six rules (Junginger Dec. ¶22, Exh. S; Pl. Dep. 179:1-10.); and




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Chief Junginger’s April 28 letter detailing the basis for his decision to terminate. (Junginger Dec. ¶9, Exh. F; Pl. Dep. 180:24 – 181:5.)

These three notices not only explained in detail the basis for the charges, but also that the charges

could lead to termination. Thus, Plaintiff was not only well aware of the charges against him,

but also that the consequence could be termination. See Matthews v. Harney County, Or., Dist.

No. 4, 819 F.2d 889, 892 (9th Cir. 1987) (Loudermill’s due process requirements include

notice prior to any pre-termination hearing of the contemplation of a dismissal action and the

charges and evidence which give rise to that concern).

b) Plaintiff admits he was provided the evidence that resulted in his termination.

Moreover, Plaintiff admits he was provided ample notice of the evidence supporting the

charges before his pre-termination meeting with Chief Junginger. Plaintiff and his Union

representatives were given a copy of the current IA documentation before his initial interview on

February 4, 2011, and then provided the current IA investigation file before his substantive

investigative interview with Lieutenant Hansen on April 13. (Junginger Dec.¶¶6, 11, 27, Exhs.

C, H, X; Pl. Dep. 182:6-24.) As discussed above, Captain Cummins’ memorandum and Chief

Junginger’s two notices, which also provided substantial detail about the evidence supporting the

termination recommendation, were also provided to Plaintiff prior to this meeting. Most

importantly, though, Chief Junginger’s April 28 notice explicitly identified the evidence and acts

upon which his decision to terminate Plaintiff was based:

Your actions of driving the city car to the location, your arrest for the criminal offense of DUII, your conviction of a misdemeanor crime, your refusal to submit to a chemical test, the suspension of your Oregon driver’s license and violations of the department’s General Orders of Obey all laws, intoxicants, Use of a City Vehicle and Conduct Unbecoming a Member, these violations in and of themselves, are egregious enough for me to determine the imposition of termination of your employment with the City of Gresham Police Department is appropriate.




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(Junginger Dec. ¶9, Exh. F.) Chief Junginger confirmed at his deposition several times that these

issues alone led to Plaintiff’s termination. (Junginger Dep. 74:6-75:5, 109:15-110:7, 118:16-19,

134:1-22.) And lest there be no doubt, Plaintiff readily admits he committed each of these acts:

Driving the City’s vehicle to Edgefield for personal use (Complaint ¶ 16; Pl. Dep. 5:11-18, 82:7-14.),

Being arrested and pleading guilty to DUII (Complaint ¶¶19-20; Pl. Dep. 23:1-6, 102:25-103:17, 141:1-11.),

Refusing to submit to a Breathalyzer or field sobriety tests (Complaint ¶ 19.),

Having his license suspended (Complaint ¶ 19; Pl. Dep. 176:20-177:14.), and

That these acts violated the department’s general orders on obeying the law,

intoxicants, use of City vehicles and conduct unbecoming a member. (Pl. Dep. 5:11-21, 82:7-14, 84:3-10, 99:9-100:17, 102:25-103:17.)

In fact, Plaintiff acknowledges that that even a perfect investigation would have concluded that

he drove a City vehicle for personal use while intoxicated. (Pl. Dep. 7:8-17.) Plaintiff, therefore,

cannot claim that he was not fully knowledgeable about the evidence supporting Junginger’s

termination recommendation and eventual decision.

c) Plaintiff admits he had an adequate opportunity to address the charges and investigation evidence prior to his termination.

Finally, Plaintiff admits that he was provided an adequate opportunity to address and

refute the IA’s evidence, as well as to present his side of the story, before being terminated. Due

process is “flexible and calls for such procedural protections as the particular situation demands.”

Matthews v. Eldridge, 424 U.S. 319, 334 (1976). An employee is only entitled to a very limited

hearing prior to his termination, which need not be elaborate. Hufford v. McEnaney, 249 F.3d

1142, 1151 (9th Cir. 2001) (citing Loudermill, 470 U.S. at 545). "A pre-deprivation hearing

serves only as an initial check against mistaken decisions—essentially, a determination of

whether there are reasonable grounds to believe that the charges are true and support the




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proposed action.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 985

(9th Cir. 1998).

Here, Chief Junginger notified Plaintiff at least once verbally and twice in writing that he

had the right to a “pre-discipline” or “due process” meeting. (Junginger Dec., ¶¶9, 22, Exhs. F, S;

Pl. Dep. 172:8-13, 174:16-175:10, 180:24-182:13.) Plaintiff worked with his Union

representatives to prepare for the meeting, and fully understood that (a) he had the opportunity to

present any information he would like Chief Junginger to consider when making his final

determination, (b) he could request additional information he may need to present his case, and

(c) he had the right to be represented by an attorney or a GPOA representative. (Pl. Dep. 181:6-

182:5.) Plaintiff acted accordingly and took advantage of that opportunity by attending the due

process meeting with a Union representative, addressing any of Chief Junginger’s findings that

he disputed, and presenting information he thought was important. (Pl. Dep. 175:19-177:22.)7

While Plaintiff may be upset regarding the conclusion and decision stemming from this meeting,

he cannot claim that he was robbed of this most necessary element of due process.

2. Plaintiff Had Additional Due Process Protections Available Through the GPOA and Collective Bargaining Agreement

In addition to the procedures provided by Defendants, Plaintiff was also afforded

adequate due process protections through the additional procedures and protections afforded by

the GPOA’s collective bargaining agreement with the City. (See Junginger Dec. ¶25, Exh. V.)

The agreement sets out procedures that need to be followed with respect to employee discipline,

including requiring the City to conduct a reasonable investigation and to provide an employee

with notice of the rule or orders subject of the discipline and consequences of their conduct. (Id.;

Junginger Dep. 64:25-65:5, 65:24-66:11.) Moreover, the agreement contains a grievance

7 As noted above, at this meeting, Plaintiff did not (and could not) dispute the investigatory findings that he drank to excess, drove a City-owned vehicle while intoxicated, crashed that car into a ditch, was arrested, refused to take a Breathalyzer test, and was charged with DUII. Further, Plaintiff did not (and could not) dispute the findings that concluded his actions violated at least six internal rules and regulations as previously outlined.




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procedure that allows either the GPOA or a represented employee to submit a written grievance,

appeal it to a second level if necessary, and then the GPOA could appeal a denied grievance to

arbitration proceedings. (Id.) In fact, the GPOA was obligated to assist any employee who

believed he had a valid grievance, and its general practice in those circumstances was to both

consult with its attorney about the parameters of the collective bargaining agreement, and to

meet with management to discuss the issue. (Coon Dep. 23:19-24:6.) Union members were also

entitled to union representation throughout an internal affairs investigation. (Coon Dep. 24:7-20,

35:20-36:19.) A public employer may meet its obligation to provide due process through

establishing grievance procedures through a collective bargaining agreement, provided, of

course, those procedures satisfy due process. Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir.

1992).

Taken together, the discipline procedure and grievance procedure in the relevant

collective bargaining agreement, as well as rights to Union representation, also afforded Plaintiff

adequate, additional procedural due process prior to his termination. Moreover, there is clear

evidence he was afforded the above procedural protections and chose not to pursue a grievance

on his own behalf; he still had the ability and opportunity to grieve any decision from his

employer via his collective bargaining agreement. (Junginger Dec. ¶25, Exh. V; Pl. Dep. 187:17-

188:20, 189:14-190:2.) In other words, the time for Plaintiff to have raised many of the issues

that now plague him and cause him to think his termination was somehow unlawful was at the

grievance stage. There can be no doubt that Plaintiff was provided all manner of ample

procedural due process, thus rendering this due process lawsuit the incorrect forum for his

concerns. While Plaintiff may be aggrieved about the fact that his Union chose not to pursue a

grievance on his behalf, it is well established that “[t]he fact that the plaintiff’s union chose not

to pursue the grievance…does not deprive plaintiff of procedural due process.” Kopf v. City of

Sweet Home, 2007 U.S. Dist. LEXIS 74234 (a copy is attached as Exh. H to the Meneghello

Dec.). Although Plaintiff may want to present a series of arguments relating to the alleged lack




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of due process, his time to raise those issues has long passed, as he had the opportunity to do so

during the investigation, the decision-making process stage, or via grievance. If Plaintiff is

aggrieved about the fact that the GPOA did not take his case to arbitration, his avenue of relief is

through a duty of fair representation claim against his Union, not a due process claim against his

former employer.

3. Plaintiff’s Theories Regarding His Alleged Denial of Due Process Are Not Grounded in Evidence or Reality.

Despite the undeniable evidence of the variety of procedures afforded to Plaintiff prior to

his termination to ensure he was provided due process of law, Plaintiff tries to base his claim on

a variety of far-fetched theories and irrelevant issues contained in the IA file documents and

beyond. However, he cannot produce a scrap of evidence demonstrating that any of these

theories are valid, let alone would raise a material issue of fact about whether Plaintiff’s rights

were violated. For instance, Plaintiff alleges in the Complaint that Chief Junginger conducted

“secret” meetings with the Union, conspired to terminate him, and that “the union through their

lawyer negotiated a secret deal between the union and the management” to terminate Plaintiff’s

employment. (See Complaint ¶¶33, 40.) At his deposition, Plaintiff’s theory quickly came apart.

He first acknowledged that his only “evidence” to support this theory came from a story that had

been relayed to him by a fellow officer and Union member, Sergeant James Peninger. (Pl. Dep.

127:5-130:14, 148:23-149:18.) According to Plaintiff, however, Sergeant Peninger only relayed

to him that he believed that a meeting or meetings had taken place between Chief Junginger, the

Union’s attorney, and the Gresham City Attorney, and that Sergeant Peninger had absolutely no

knowledge about the substance of any of these meetings.8 (Id.) When pressed further about this

“evidence,” Plaintiff admitted that it was essentially his own speculative theory unsupported by

any actual facts:

8 It is important to note that Sergeant Peninger, while under oath, testified that he never had any such conversation with Plaintiff, and he had no knowledge about any such meetings taking place. (Deposition of James Peninger, attached as Exh. I to the Meneghello Dec. ¶10 (referenced herein as “Peninger Dep.”) at 18:25-19:20, 27:16-28:11.)




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Q. So if I understand you correctly, the evidence that you have to support the fact that there was a secret deal between the union and management was -- is that a meeting took place with Mark Makler, the city attorney, and the Chief, and that after that meeting the union was no longer willing to proceed with the grievance on your behalf; correct?

A. Yes.

Q. Is there any other evidence, besides the timing of those two incidents that leads you to believe there was a secret agreement reached either at that meeting or around that meeting?

A. No.

Q. Did you ever learn what the terms of that meeting were?

A. No.

Q. Did you ever learn the terms of what the agreement would have been, what the union would have gotten in exchange for throwing you under the bus?

A. No.

(Pl. Dep. 129:16-130:10.) It is of no surprise that all three of the participants in the theorized

“secret meeting” testified that no such meeting or negotiations ever took place: Chief Junginger

testified as such at his deposition, GPOA’s attorney Mr. Makler did the same, and City Attorney

David Ris provided a Declaration to that effect. (See Junginger Dep. 159:1-160:3; Deposition of

Mark Makler, attached as Exh. J to the Meneghello Dec. ¶11 (referenced herein as “Makler

Dep.”) at 3:14-4:3, 4:10-18, 5:12-21; Declaration of David Ris in Support of Defendants’ Motion

for Summary Judgment (“Ris Dec.”) ¶2.) Further, GPOA’s then-President Sergeant Coon also

denied that he ever met with Makler and Chief Junginger to discuss Plaintiff’s termination or

potential grievance. (Coon Dep. 86:19-25.) Plaintiff’s due process claim is hard-pressed to be

taken seriously when it relies on unsupported theories and speculative notions.9

9 On February 10, 2014, when discovery was all but complete and it was obvious that this theory as outlined in the Complaint had no evidentiary basis, defense counsel sent a letter to Plaintiff’s counsel asking that this theory, among several others, be voluntarily dismissed given the lack of evidence, providing detailed explanations supported by citations from the record demonstrating the frivolous nature of the claim. (Meneghello Dec.¶12, Exh. K.) On February 13, Plaintiff’s counsel refused to do so without explanation. (Meneghello Dec.¶12.)




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Plaintiff also makes a range of additional allegations about the propriety of incidental

facts contained in the IA’s summaries and attempts to tie his claims to these non-issues. (See

Complaint ¶¶ 25-29.) However, none of these incidental issues change the fundamental matter in

this case: Plaintiff received all the process that was due to him prior to his termination. Plaintiff

cannot establish his prima facie case as a result, thus all the odd hypothesis and issues with

incidental facts and matters in the IA investigation are utterly irrelevant. See Basso v. City of

West Covina, 86 F.3d 1161 (9th Cir. 1996) (employee’s arguments regarding the propriety of

employer’s decision on additional incidents of misconduct recounted in notice of proposed

dismissal are without merit when employer did not base the decision to terminate on the

additional incidents and employee had ample time to respond to charges that ultimately led to his

termination.)

4. Chief Junginger and Captain Cummins Are Shielded by Qualified Immunity.

Additionally, to the extent the due process claim is brought against the two individual

Defendants, Plaintiff does not have sufficient evidence to demonstrate that a genuine issue of

material fact exists as to his claims against them individually, and thus, they should both be

granted qualified immunity. Qualified immunity shields federal and state officials performing

discretionary functions from civil damages unless a plaintiff shows that the official violated a

clearly established statutory or constitutional right of which a reasonable person would have

known his conduct was unlawful. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). Qualified

immunity allows government officials to make reasonable but mistaken judgments about open

legal questions and “protects all but the plainly incompetent or those who knowingly violate the

law.” Id. at 2085.

Chief Junginger and Captain Cummins should be protected from any of Plaintiff’s claims

against them in their individual capacities because both were exercising their discretion when

making findings and conclusions related to the investigation and Plaintiff’s termination. There is




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no evidence demonstrating that either made these decisions recklessly or with knowledge they

were violating the law. In fact, both took affirmative steps to ensure Plaintiff was provided due

process, including providing substantial notices and explanation of the charges, the evidence, and

his rights. (Junginger Dec. ¶¶6, 8-9, 11, 14, 18, 22, Exhs. C, E-F, H, K, O, and S.) Moreover,

there is no evidence that their decision to terminate Plaintiff was unreasonable or unlawful. Both

made efforts to ensure the investigation was thorough, accurate and that internal policies were

followed. (Junginger Dep. 74:6-75:5, 90:9-18, 97:19-98:17, 135:9-136:21, 137:9-139:14, 151:9-

21, 159:1-21; Cummins Dep. 29:1-15, 33:9-21, 36:9-17, 41:8-42:1, 65:4-20, 66:24-67:21, 69:4-

70:13, 85:4-25.) Plaintiff himself admitted that he knew from the outset of the investigation that

he could possibly lose his job. (Pl. Dep. 8:2-24, 9:8-10:2, 172:14-23.) Plaintiff’s union

representatives and co-workers believed the same. (Coon Dep. 57:23-58:11, 60:15-61:6;

Peninger Dep. 15:25-17:1.) Plaintiff can present no genuine issue of fact demonstrating that

Captain Cummins or Chief Junginger were incompetent or knowingly violated the law, thus

establishing another reason why his due process claim should be dismissed.

B. Plaintiff’s Allegations Do Not Form a Proper Monell Claim Because He Raises No Triable Issues Regarding the Conduct Leading to His Termination.

Even if, arguendo, Plaintiff could raise a scintilla of evidence about whether he was

afforded adequate due process, he still could not establish a § 1983 claim against the City. That

is because a municipality may only be subject to suit under § 1983 if it caused a constitutional

tort through a policy statement, ordinance, regulation, or decision officially adopted and

promulgated by that body's officers, and may not be held vicariously liable for the

unconstitutional acts of its employees under the theory of respondeat superior. Monell v. Dept.

of Social Services, 436 U.S. 658, 690-91 (1978). Thus, a § 1983 plaintiff has one of three ways

to establish a claim against a municipality if he so chooses: (1) by proving a city employee

committed the alleged constitutional violation pursuant to a formal governmental policy or a




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longstanding practice or custom; (2) establishing that the individual who committed the

constitutional tort was an official with "final policy-making authority" and that the challenged

action itself thus constituted an act of official governmental policy; or (3) by proving that an

official with final policy-making authority ratified a subordinate's unconstitutional decision or

action and the basis for it. Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992).

Plaintiff’s last ditch effort to sustain a claim related to his termination comes via the form of a

Monell claim against the City, but as demonstrated below, he cannot establish sufficient evidence

to raise a material fact as to any of the three options.

1. Plaintiff Admitted that His Due Process Concerns Began at the Time of the Investigation, Foreclosing the Opportunity to Bring a Monell Claim Against the City.

Plaintiff alleges in the Complaint that Chief Junginger and/or Captain Cummins created,

contributed to, developed and promoted an official and unofficial policy or practice that was the

motivating force behind his alleged constitutional violations. (Complaint, ¶¶ 44-45.) To prevail

on this theory, the U.S. Supreme Court and the Ninth Circuit have ruled that a plaintiff must

prove “the existence of a widespread practice that . . . is so permanent and well settled as to

constitute a custom or usage with the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127

(1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)); Thompson v. City of

Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir. 1989) (“Consistent with the commonly

understood meaning of custom, proof of random acts or isolated events [is] insufficient to

establish custom.”). The Ninth Circuit has said that “[l]iability for improper custom may not be

predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient

duration, frequency, and consistency that the conduct has become a traditional method of

carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). However, Plaintiff has

admitted that each of the policies or practices alleged in the Complaint were fashioned during his




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investigation and only applicable to him and him alone. (Pl. Dep. 149:19-155:16.)10 Thus, any

claim that his alleged due process violations were committed pursuant to a formal or informal

government practice or custom must fail.

2. Chief Junginger’s and Captain Cummins’ Discretionary Decisions Regarding Plaintiff Did Not Rise to the Level of Official Government Policy.

Even if the Court chooses to continue its analysis, a second reason to dismiss the Monell

claim is that Plaintiff cannot demonstrate that Chief Junginger and/or Captain Cummins’

decisions with regard to his investigation and termination were deliberate choices to create final

policy for the City. To impose liability for a single unconstitutional decision of a policymaker,

the U.S. Supreme Court has held that there must be “a deliberate choice to follow a course of

action … made from among various alternatives by the official or officials responsible for

establishing final policy with respect to the subject matter in question.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 483-84 (1986). Plaintiff cannot demonstrate that the two individuals

specified were official final policymakers, and even if he could, he can certainly not demonstrate

that their decisions were in deliberate or reckless regard of his rights.

a) Chief Junginger and Captain Cummins Were Not Final Policymakers.

Plaintiff’s claim fails as neither Chief Junginger nor Captain Cummins were officials

responsible for establishing final policy on employment matters for the City. Captain Cummins’

recommendations and conclusions had to be approved by Chief Junginger and, hence, could not

result in final policy. (Junginger Dec. ¶21, Exh. R; Cummins Dep. 32:22-33:1, 33:9-21, 36:9-17.)

See Collins v. City of San Diego, 841 F.2d 337, 341 (9th Cir. 1988) (a police sergeant with

discretion to recommend hiring, firing, and discipline of employees could not be attributed to the

10 When asked more specifically when he believed the due process denial began, Plaintiff also testified that he believed “[t]he due process [claim] starts obviously after there’s a process that starts for disciplinary action or termination, so after the time” he engaged in the misconduct. (Pl. Dep. 6:13-25.)




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municipality because the sergeant was not responsible for establishing final employment policy).

And, while Chief Junginger was the ultimate decision maker on Plaintiff’s termination, simply

having the discretionary authority to hire and fire employees is also not sufficient to establish

that an agent is a “policy maker.” Gillette, 979 F.2d at 1350; Collins, 841 at 341; see also

Pembaur, 475 U.S. at 483, n. 12 (the personnel decisions of a County Sheriff, who had discretion

to hire and fire employees but was not the county official responsible for establishing county

employment policy, could not be attributed to the municipality).

Whether an official has final policymaking authority is a question for the Court to decide

based on state law. Gillette, 979 F.2d at 1346. Under the City’s charter and revised code, the City

Manager is solely granted the power to appoint and remove, supervise and direct City officers

and employees, and is responsible for establishing the City’s employment policies and for

adopting, amending and granting exceptions to personnel rules and entering employment

agreements on behalf of the City. (Ris Dec. ¶¶3-4, Exhs. A-B.) General Order 5.9, the GPD’s

Internal Affairs Investigation procedures, specifically notes that the City Manager shares with

the Chief of Police the authority to discipline and terminate GPD employees. (Junginger Dec.

¶21, Exh. R; Junginger Dep. 151:22-24.) However, even if such power has been delegated to

Chief Junginger, it would not convert him into a “final policymaker” for employment policy as

he still does not have discretion to change the City’s personnel policies and collective bargaining

agreement.11 As Chief Junginger himself testified in his deposition, “the City Manager is the

boss of everyone in the City” and he would be obligated to report disciplinary issues to him.

(Junginger Dep. 94:15-96:5.) Therefore, any specific decisions Chief Junginger may have made

to deviate from the City’s standard due process procedures during Plaintiff’s termination cannot

be imputed to the City. See Christie v. Iopa, 176 F.3d 1231, 1236 (9th Cir. 1999) (when an

official's discretionary decisions are constrained by policies not of that official's making, those

policies, rather than the official's departures from them, are the act of the municipality).

11 Negotiations of the collective bargaining agreement with the GPOA are also the province of the City, and Chief Junginger is not involved. (Junginger Dep. 63:4:10.)




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b) There Is No Evidence that Either Cummins or Junginger Deliberately or Recklessly Disregarded Plaintiff’s Rights.

But even if this Court believes there is a question of fact as to whether either of these two

individuals are considered final policymakers, there is no evidence that Chief Junginger or

Captain Cummins deviated from GPD standards or rules when ordering, directing, or reviewing

the investigation, or when providing Plaintiff with notice of the charges, investigation results,

intent to discipline or the decision to terminate. Without producing evidence that Chief

Junginger’s and/or Captain Cummins’ conduct demonstrated gross negligence or reckless

disregard for his civil rights, Plaintiff has no Monell claim. Hammond v. County of Madera, 859

F.2d 797, 803 (9th Cir. 1988). Because Plaintiff cannot produce such evidence, he has no claim.

Chief Junginger was primarily responsible for ensuring Plaintiff was provided due

process and took affirmative steps to ensure Plaintiff did including providing substantial notices

and explanation of the charges, evidence, and his rights. (Junginger Dec. ¶¶9, 18, 22, 23, Exhs.

F, O, S, T.) Chief Junginger and Captain Cummins both have extensive experience conducting

and supervising IAs and were aware of such routines or practices.12 (Junginger Dep. 20:7-24:16;

Cummins Dep.18:23-21:15.) Both made efforts to ensure that the investigation was thorough,

accurate, and that internal policies were followed. (Junginger Dep. 74:6-75:5, 90:9-18, 97:19-

98:17, 135:9-136:21, 137:9-139:14, 151:9-21, 159:1-21; Cummins Dep. 29:1-15, 33:9-21, 36:9-

17, 41:8-42:1, 65:4-20, 66:24-67:21, 69:4-70:13, 84:13, 85:4-25.) Even if the IA was flawed in

immaterial ways, or either of the two of them made mistakes along the way, such actions in and

of themselves, do not rise to the level of gross negligence. Plaintiff simply cannot produce

evidence that rises to this level. Summary judgment on Plaintiff’s Monell claim should therefore

be granted.

12 Captain Cummins was also tasked by the former Chief of Police to review the Department’s policies on internal affairs investigations, assist in drafting the GPD’s current General Orders and procedures, and ensure that officers were properly trained as investigators. (Cummins Dep. 19:5-14.)




Portland, Oregon 97204 (503) 242-4262

Portland 118148.2

VI. CONCLUSION

Plaintiff admits that he got extremely drunk, drove his City-owned vehicle into a ditch,

was arrested, refused to take a Breathalyzer test, and was charged with DUII. Plaintiff admits he

was provided ample notice that these actions violated the rules and regulations he was sworn to

follow as a police officer. Plaintiff admits that he was afforded the opportunities that amount to

necessary due process when his conduct was investigated and when the decision to terminate his

employment was made, and thus summary judgment should be granted.

Dated: March 31, 2014 FISHER & PHILLIPS LLP

s/ Erin O. Sweeney Richard R. Meneghello, OSB #96361 Erin O. Sweeney, OSB #106632 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 Telephone (503) 242-4263 Facsimile

Attorneys for Defendants Craig Junginger, Dale Cummins, and the City of Gresham




Portland, Oregon 97204 (503) 242-4262

Portland 118148.2

CERTIFICATE OF COMPLIANCE

This brief complies with the applicable word-count limitations under LR 7-2(b) because it contains 8,577 words, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of authorities, signature block, and any certificates of counsel.

s/ Erin O. Sweeney


CERTIFICATE OF SERVICE


Portland, Oregon 97204 (503) 242-4262

Portland 118148.2

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT by the method(s) indicated below on:

Michelle R. Burrows 22586 SW Park Street Sherwood, OR 97140

Tel: 503-241-1955 Fax: 503-241-3127 e-mail: [email protected]

Attorneys for Plaintiff

Jason G. Short 12755 SW 69th Avenue, Suite 200

Portland, OR 97223 Tel: 503-747-7198 Fax: 503-747-2951

e-mail: [email protected] Attorneys for Plaintiff

by the following indicated method(s):

Electronic filing via the CM/ECF system.

Regular or Priority Mail: by mailing a full, true, and correct copy thereof in a sealed envelope with postage prepaid thereon, addressed as above stated, which is the last-known office address of the attorney, and

Depositing it with the United States Postal Service at Portland, Oregon, on the date

set forth below. Plus E-mail*

Sending it via a priority mail service on the date set forth below. Plus E-mail*

Hand-Delivery: by causing a full, true and correct copy thereof to be hand-delivered to the attorney at either the attorney’s last-known office address as above stated, on the date set forth below, or at another location where the attorney is known to be, on the date set forth below.

* E-Mail: Where checked above, e-mail was effected by causing a full, true and correct copy thereof to be transmitted to the attorney in WordPerfect or Word format via electronic correspondence to the attorney’s last-known e-mail address in accordance with United States District Court Local Rule 5.2(b) or in PDF format where Rule 5.2(b) is no applicable.

DATED this 31st day of March, 2014. FISHER & PHILLIPS LLP

s/ Erin O. Sweeney Richard R. Meneghello, OSB # 963610 Erin O. Sweeney, OSB #106632

Attorneys for Defendants Craig Junginger, Dale Cummins, and the City of Gresham


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