I call bull shit on Multnomah County's bull shit boiler plate response to my jail brutality lawsuit. I filed suit against Multnomah County and several deputies for intentionally breaking my arm in 2017 as well as deliberate indifference to my serious medical needs, and defamation for making false statements in official reports. Their response is typical of any government entity that is sued for the conduct of law enforcement. They claim that either their claim involves immunity or is procedurally barred in some way. I am not discouraged because the first line of defense for any lawsuit is to see if you can get it thrown out without addressing the merits of the claims.
In this case Senior Assistant County Attorney Bruce Andrew Jones (OSB# 091786) makes several bull shit claims. I will address them as he made them in his response to my lawsuit.
First, Jones claims that I failed to state a claim on which relief can be granted. That could not be further from the truth. Relief is granted in cases of intentional excessive use of force and failing to properly treat serious medical conditions in many cases.
Second, Jones cites Oregon law when he claims that the defamation claims are barred by the statute of limitations because that law required that a claim be brought withing one year. If this case were brought in state court he would be right. However, federal law has a longer statute of limitations. 28 U.S.C. 1658 "(a)Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues." The Act of Congress that gives federal courts jurisdiction over state law claims is 28 U.S.C. 1367 which states "(a)Except as provided in subsections (b) and (c) 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." Therefore the district court has jurisdiction over state law defamation claims under these Act of Congress and the statute of limitations for pursuing a civil action under an Act of Congress if 4 years.
Third, He claims a truth defense to the defamation claims saying, "The alleged defamatory statements by Defendants are true. " The merits of his defense will encounter a lot of the same problems that the United States Attorney's Office ran into when prosecuting me for false claims of injury. Several deputies claimed to be injured but sought no medical care and took no pictures. Therefore there was no evidence to prove the truthfulness of the injury claims. There is also expert testimony proving that claims about how my arm was broken were not true.
Fourth, he claims that the defendants are immune from suit under Oregon law. This is a federal lawsuit so even if they are immune from claims in state court that does not trump federal claims of civil rights violations under Section 1983. Also, Oregon law only provides immunity to discretionary functions. No government employee has the discretion to violate someones federal civil rights or a clearly established federal law of which a reasonable person would have known. Intentionally breaking one's arm is not a discretionary function.
Fifth and finally, Jones claims that all federal claims are barred by the doctrine of qualified immunity. The problem with that claim is that qualified immunity only applies to discretionary functions. For instance, if I had been fighting the guards in the firth floor cell and my arm were broken due to them having to control me, as they claim, that would be covered by qualified immunity just like if a cop on the street were to bruise someone they had to tackle while making an arrest. Qualified immunity does not cover intentional acts and civil rights violations because such things are not discretionary functions. The act of sitting on top of me, grabbing my arm, and twisting it until it broke while I was face down on the ground and not resisting at all is not a discretionary function. Even if hypothetically Deputy Timothy Barker was not trying to break the arm, he was at the very least trying to inflict unnecessary pain. Courts have also held that jail medical staff are not protect from claims resulting from deliberate indifference.
In support of my arguments I offer the following case law:
Kingsley v. Hendrickson, 135 S. Ct. 2466, 576 U.S. ___ (2015): "Under 42 U.S.C. 1983, a pretrial detainee need only show that the force purposely or knowingly used against him was objectively unreasonable to prevail on an excessive force claim...Whitley v. Albers, 475 U.S. 312, and Hudson v. McMillian, 503 U.S. 1, lack relevance in this context because they involved claims brought by convicted prisoners under the Eighth Amendment's Cruel and Unusual Punishments Clause, not claims brought by pretrial detainees under the Fourteenth Amendment's Due Process Clause. The key difference is that a pretrial detainee is protected from being punished at all, so the punishment need not be cruel or unusual to constitute a punishment without due process of law in violation of the Fourteenth Amendment, so even though I believe that I can show that Deputy Barker's subjectively intended to break my arm I do not have to prove that the officers were subjectively aware that their use of force was unreasonable."
Hallett v. Morgan, 286 F.3d 732 (9th Cir. 2002): "Prison officials are deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment."
Estelle v. Gamble 429 U.S. 97 (1976): "deliberate indifference to a prisoner's serious medical needs constituted cruel and unusual punishment under the Eighth Amendment and gave rise to a civil rights cause of action under 42 USCS 1983, regardless of whether the indifference was manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed."
Hope v. Pelzer, 536 U.S. 730 (2002): " Respondents may nevertheless be shielded from liability for their constitutionally impermissible conduct if their actions did not violate 'clearly established statutory or constitutional rights of which a reasonable person would have known.' Harlow v. Fitzgerald, 457 U. S. 800, 818. "