Case 1:21-cv-01520-CL Document 119 Filed 09/04/24 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF OREGON
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`MEDFORD DIVISION
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`LIESE BEHRINGER,
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` Civ. No. 1:21-cv-01520-CL
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` OPINION & ORDER
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`Plaintiff,
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`CITY OF ASHLAND; PROVIDENCE
`HEALTH & SERVICES—OREGON;
`TIGHE O’MEARA; JUSTIN MCCREADIE;
`JANE AND JOHN DOE ASHLAND
`POLICE OFFICERS; JOHN AND JANE
`ROE PROVIDENCE HEATLH &
`SERVICES EMPLOYEES; ABC
`CORPORATIONS I-X; BLACK AND
`WHITE PARTNERSHIPS I-X; SOLE
`PROPRIETORSHIPS OR TRUSTS I-X,,
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`Defendants.
`_______________________________________
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`AIKEN, District Judge.
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` This case comes before the Court on a Motion for Preliminary Injunction, ECF
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`No. 87, filed by Plaintiff. The Court heard oral argument on the motion on August
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`23, 2024. ECF No. 118. For the reasons set forth below, the motion is DENIED.
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`LEGAL STANDARDS
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`A preliminary injunction is an “extraordinary remedy that may only be
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`awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v.
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`Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary
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`Page 1 –OPINION & ORDER
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`Case 1:21-cv-01520-CL Document 119 Filed 09/04/24 Page 2 of 12
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`injunction must show (1) that he or she is likely to succeed on the merits; (2) he or
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`she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the
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`balance of the equities tips in his or her favor; and (4) an injunction is in the public
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`interest. Id. at 20.
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`In the Ninth Circuit, courts may apply an alternative “serious questions” test
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`which allows for a preliminary injunction where a plaintiff shows that “serious
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`questions going to the merits” were raised and the balance of hardships tips sharply
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`in plaintiff’s favor, assuming the other two elements of the Winter test are met.
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`Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). This
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`formulation applies a sliding scale approach where a stronger showing on one
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`element may offset a weaker showing in another element. Id. at 1131. Nevertheless,
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`the party requesting a preliminary injunction must carry its burden of persuasion by
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`a “clear showing” of the four elements set forth above. Lopez v. Brewer, 680 F.3d
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`1068, 1072 (9th Cir. 2012).
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`BACKGROUND
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`The following recitation of facts is based on the pleadings and the submitted
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`exhibits. The Court has particularly considered the video exhibits, which included
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`police bodycam footage.
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`On the evening of October 19, 2019, Plaintiff Liese Behringer was driving in
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`the City of Ashland when she was pulled over by Defendant Justin McCreadie, an
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`Ashland police officer. After interacting with Plaintiff, McCreadie became suspicious
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`that Plaintiff was impaired. McCreadie asked Plaintiff to perform field sobriety tests
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`Page 2 –OPINION & ORDER
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`Case 1:21-cv-01520-CL Document 119 Filed 09/04/24 Page 3 of 12
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`(“FST”). Plaintiff refused to perform FST. Plaintiff was placed under arrest. A
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`search of Plaintiff’s car revealed marijuana.
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`Plaintiff was transported to the Ashland Police Station and taken to the
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`Intoxilyzer room where she was given the opportunity to call an attorney. Plaintiff
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`breathed into the breathalyzer machine but did so with insufficient force to generate
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`an accurate reading. Plaintiff maintains that she was unable to provide a sample,
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`but McCreadie believed that Plaintiff was deliberately failing to provide a breath
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`sample. Armstrong Decl. Ex. 2, at 7. ECF No. 101.
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`McCreadie believed, based on the presence of marijuana in the car, that
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`Plaintiff was under the influence of something other than alcohol or under the
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`influence of a combination of intoxicants. McCreadie Decl. ¶ 6. ECF No. 97.
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`McCreadie applied for a warrant for the collection of Plaintiff’s blood and urine.
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`Armosino Decl. Ex. 4. ECF No. 98. A Jackson County Circuit Court judge found that
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`there was probable cause and issued a warrant for the collection of Plaintiff’s blood
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`and urine with the assistance of a qualified medical professional. Armstrong Decl.
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`Ex. 4. The warrant was to be executed within four hours. Id. At the time, the Oregon
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`Crime Lab required urine to test for the presence of drugs. McCreadie Decl. ¶ 8. The
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`Oregon Crime Lab only tested blood for alcohol at the time. Armstrong Decl. Ex. 2,
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`at 9-10.
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`After receiving the warrant, McCreadie transported Plaintiff to Providence
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`Medford Medical Center, operated by Defendant Providence Health & Services—
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`Oregon (“Providence”). Plaintiff was belligerent and shouting when she arrived at
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`Page 3 –OPINION & ORDER
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`Case 1:21-cv-01520-CL Document 119 Filed 09/04/24 Page 4 of 12
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`the hospital. On the bodycam video, Plaintiff’s speech is slurred, sometimes difficult
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`to understand, and occasionally incoherent. Prior to the collection of blood or urine,
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`McCreadie read the contents of the warrant to Plaintiff. Armosino Decl. Ex. 1B.
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`0:6:55. When hospital staff attempted to take Plaintiff’s blood pressure, Plaintiff
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`began flailing and screaming “You are not!” and “I’m not fucking cooperating!”
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`Armosino Decl. Ex. 1B, 04:05, 05:56. Hospital staff were able to take a blood sample
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`while Plaintiff was handcuffed.
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`McCreadie asked Plaintiff to provide a voluntary urine sample. Plaintiff
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`refused to provide a sample unless McCreadie would take her home. McCreadie
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`explained that he would not take her home and that she would be taken to the jail.
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`McCreadie warned Plaintiff that if she did not provide a voluntary urine sample, a
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`sample would be collected via catheter and briefly explained the process of
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`catheterization. McCreadie repeatedly asked Plaintiff to provide a voluntary urine
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`sample and Plaintiff refused. McCreadie told Plaintiff that if she was willing to
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`provide a urine sample, he would remove the handcuffs and allow her to go into the
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`bathroom with a cup for the sample.1 Plaintiff responded “Tie me down. Do your
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`shit; I don’t care.” Armosino Decl. Ex. 1B, at 23:30. Hospital staff also asked Plaintiff
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`to provide a voluntary sample and Plaintiff declined and continued to shout at
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`McCreadie and hospital staff. McCreadie asked Plaintiff again to provide a urine
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`1 The video evidence on this issue is contrary to Plaintiff’s assertion that she was willing to give a
`urine sample “just not in the presence of a male officer.” Pl. Mot. 9. On the bodycam video, Plaintiff
`expressed a willingness to give a urine sample if McCreadie would take her home rather than to jail.
`Plaintiff repeatedly refused entreaties to provide a voluntary sample in the privacy of the hospital
`bathroom.
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`Page 4 –OPINION & ORDER
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`Case 1:21-cv-01520-CL Document 119 Filed 09/04/24 Page 5 of 12
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`sample, warning her that the alternative was the use of the catheter. Plaintiff
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`responded “I’m glad. I hope it's pleasurable for you.” Armosino Decl. Ex. 1B, at 25:05.
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`Plaintiff was handcuffed to the bed. McCreadie and the hospital staff asked Plaintiff
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`a final time to provide a voluntary sample, to which she replied “No, do it.” Armosino
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`Decl. Ex. 1B, at 26:16. Hospital staff collected the urine sample via catheterization.
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`Plaintiff did not cooperate with the collection of the urine sample.2 Throughout the
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`process of collection, Plaintiff shouted “Come on, take a look-see!” at McCreadie and
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`“This is rape!” at hospital staff. Armosino Decl. Ex. 1B, at 27:00; 28:40. Contrary to
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`Plaintiff’s claims, the bodycam footage shows that McCreadie turned and faced away
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`from the bed while the sample was collected.
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`After the urine sample was collected, Plaintiff was taken to the jail. At the jail,
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`Plaintiff successfully provided a breath sample for the breathalyzer at 11:00 p.m.
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`Plaintiff’s BAC was 0.14%, despite being collected three hours after her arrest.
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`McCreadie Decl. ¶ 12. This suggests that Plaintiff’s degree of intoxication was
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`substantially greater at the time of her arrest.
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`Analysis of Plaintiff’s urine returned a positive result for five controlled
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`substances. McCreadie Decl. ¶ 12. Plaintiff subsequently pleaded guilty to DUII.
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`Armosino Decl. Ex. 3.
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`2 Defendants suggested at oral argument that, based on Plaintiff’s statements leading up to her
`catheterization in which she invited, or perhaps dared, McCreadie and hospital staff to catheterize
`her, that Plaintiff voluntarily submitted to catheterization. Plaintiff asserts that the catheterization
`was involuntary. It is not necessary for the Court to resolve this issue and the Court will assume, for
`purposes of this motion, that the urine sample was collected via non-voluntary catheterization.
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`Page 5 –OPINION & ORDER
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`Case 1:21-cv-01520-CL Document 119 Filed 09/04/24 Page 6 of 12
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`DISCUSSION
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`In the Amended Complaint, ECF No. 29, Plaintiff brings claims for (1)
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`conspiracy to violate civil rights pursuant to 42 U.S.C. § 1983; (2) violation of
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`Plaintiff’s Fourth and Fourteenth Amendment rights, alleging forced catheterization,
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`exceeding the scope of the search warrant, and excessive force; (3) Monell liability; (4)
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`respondeat superior liability as to Defendant Providence Health & Services—Oregon
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`(“Providence”); (5) battery as to McCreadie, the Doe and Roe Defendants, and
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`Providence; (6) assault as to McCreadie, the Doe and Roe Defendants, and
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`Providence; (7) intentional infliction of emotional distress; and (8) negligent infliction
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`of emotional distress.
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`Plaintiff seeks an injunction (1) ordering the City of Ashland to “immediately
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`end its practice of seeking urine samples via non-consensual catheterization in
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`misdemeanor DUI and DUII investigations” and (2) ordering Providence Health &
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`Services – Oregon to “immediately end its practice of collecting evidence for law
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`enforcement via non-consensual urinary catheterization.” Pl. Mot. 6. ECF No. 87.
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`I.
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`Irreparable Harm
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`A plaintiff seeking an injunction must “must establish that irreparable harm
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`is likely, not just possible.” Alliance for the Wild Rockies, 632 F.3d at 1131. Here,
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`Plaintiff has failed to show that she is likely to be subjected to catheterization a
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`second time by Defendants. In assessing the likelihood of Plaintiff being involuntary
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`catheterized, it is useful to examine the sequence of events that led to the use of the
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`catheter in October 2019. First, Plaintiff drove while intoxicated and was stopped by
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`Page 6 –OPINION & ORDER
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`McCreadie. Next, Plaintiff refused to perform FST. Plaintiff failed, whether
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`intentionally or as a result of a medical condition, to provide a breath sample.
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`McCreadie then made a showing of probable cause to a circuit court judge that was
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`sufficient to convince the judge to issue a warrant for the collection of Plaintiff’s blood
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`and urine. Plaintiff refused repeated entreaties by McCreadie and hospital staff to
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`provide a voluntary urine sample, even after being warned that a catheter would be
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`used if she did not provide a voluntary sample. Only then did hospital staff
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`catheterize Plaintiff to collect the urine sample. The existence of so many safeguards,
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`particularly the issuance of a warrant, demonstrate that the use of involuntary
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`catheterization is not done routinely or casually by Defendants. It also indicates that
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`the likelihood of Plaintiff being subjected to the procedure a second time is remote.3
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`Although Plaintiff argues that there is a pattern or practice of performing
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`involuntary catheterizations, but Plaintiff has not presented any evidence of anyone
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`other than herself who was involuntary catheterized by Defendants in the course of
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`a DUII investigation.
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`A preliminary injunction is an extraordinary remedy and Plaintiff has failed
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`to demonstrate that irreparable harm is likely in the absence of injunctive relief, as
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`opposed to merely possible. The Court concludes that this factor weighs sharply
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`against the issuance of a preliminary injunction.
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`3 The Court also notes that Plaintiff filed her motion nearly five years after the events giving rise to
`her claim and nearly three years after the filing of this action. Plaintiff does not suggest in her
`briefing that she had been threatened with involuntary catheterization during that time. Nor does
`she identify any other instances of involuntary catheterization to suggest that the practice is routine
`or widespread.
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`Page 7 –OPINION & ORDER
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`Case 1:21-cv-01520-CL Document 119 Filed 09/04/24 Page 8 of 12
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`II.
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`Likelihood of Success on the Merits
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`To prevail on a motion for preliminary injunction, a plaintiff must show either
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`a likelihood of eventual success on the merits or, under the Ninth Circuit’s alternative
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`“sliding scale” formulation of the test, serious questions going to the merits of their
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`claims. Winter, 555 U.S. at 20; Alliance for the Wild Rockies, 632 F.3d at 1131-32.
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`However, a court’s decision on a motion for preliminary injunction is not a ruling on
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`the merits of the claim. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415,
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`1422 (9th Cir. 1984).
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`Here, Plaintiff’s motion presumes the existence of a constitutional violation
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`without substantively engaging with her burden to demonstrate likelihood of success
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`on the merits. Plaintiff does not, for instance, challenge the existence of probable
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`cause or the propriety of the warrant. Plaintiff’s motion appears to presume that
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`catheterization is per se unreasonable, for which Plaintiff cites Ellis v. City of San
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`Diego, 176 F.3d 1183 (9th Cir. 1999). Pl. Mot. 8. This overstates the holding of Ellis.
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`In Ellis, the Ninth Circuit held that blood and urine tests are searches that are
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`subject to the constraints of the Fourth Amendment and that a warrantless blood or
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`urine test was unreasonable unless supported by both probable cause and exigent
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`circumstances and that, even if supported, might still be unreasonable if excessive
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`force was employed. Id. at 1191-92. Significantly, the Ninth Circuit’s holding focused
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`on the fact that the district court had granted a motion to dismiss and, accepting as
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`true the plaintiff’s “allegations regarding the absence of any basis for the body search
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`and his contentions regarding the use of excessive force,” the defendants were not
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`Page 8 –OPINION & ORDER
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`Case 1:21-cv-01520-CL Document 119 Filed 09/04/24 Page 9 of 12
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`entitled to qualified immunity. Id. at 1192. Here, the Court considers a motion for
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`preliminary injunction, which entails consideration of evidence rather than merely
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`allegations. In addition, the record shows that a warrant was issued for the collection
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`of Plaintiff’s urine, which required a demonstration of probable cause to a neutral
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`magistrate and materially distinguishes the facts of this case from those of Ellis.
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`As to Plaintiff’s Monell claim,4 to hold the City of Ashland or Providence liable
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`Plaintiff must show that the constitutional violation was caused by (1) an official
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`policy, (2) a pervasive practice or custom, (3) a failure to train, supervise or discipline,
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`or (4) a decision or act by a final policymaker. Horton by Horton v. City of Santa
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`Maria, 915 F.3d 592, 602-03 (9th Cir. 2019). A plaintiff may also demonstrate that a
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`an official with
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`final policy-making authority
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`ratified a subordinate’s
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`unconstitutional decision or action and the basis for it. Gillette v. Delmore, 979 F.2d
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`1342, 1346-47 (9th Cir. 1992). Here, Plaintiff does not identify any other instances of
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`involuntary catheterization. Her Monell claim is supported only by the fact that
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`neither Providence or the City of Ashland have affirmatively disavowed the disputed
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`practice and by the City of Ashland’s determination that McCreadie had not acted
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`improperly in his investigation of Plaintiff’s DUII. The Court concludes that this is
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`an insufficient showing to support a preliminary injunction.
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`Finally, Plaintiff makes a number of arguments based on Oregon law. Plaintiff
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`argues that under the implied consent statute, ORS 813.131, McCreadie was not
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`permitted to seek a urine sample from Plaintiff. The statute provides:
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`4 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
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`Page 9 –OPINION & ORDER
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`A police officer may not request a urine test unless the officer is certified
`by the Department of Public Safety Standards and Training as having
`completed at least eight hours of training in recognition of drug impaired
`driving and the officer has a reasonable suspicion that the person
`arrested has been driving while under the influence of an intoxicant
`other than intoxicating liquor or a combination of intoxicants.
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`ORS 813.131(3).
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`Here, the parties dispute whether McCreadie had the necessary qualifications
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`to request a urine sample. However, McCreadie did not seek a urine sample from
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`Plaintiff under the implied consent statutes. Instead, he applied for and received a
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`warrant for Plaintiff’s urine from a circuit court judge. Under those circumstances,
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`it is irrelevant whether McCreadie had the necessary training to request a
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`warrantless urine sample from Plaintiff based on implied consent.
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`In sum, the Court is not convinced that Plaintiff has made a sufficient showing
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`of likely success on the merits to support an injunction. However, even if the Court
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`were to accept, for the purposes of this motion, that Plaintiff had demonstrated a
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`likelihood of success on the merits or serious questions going to the merits, Plaintiff’s
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`failure to carry her burden on the likelihood of irreparable harm would prevent an
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`injunction from issuing.
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`III. Balance of the Equities and the Public Interest
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`Under the “balance of equities” analysis, a court must “balance the competing
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`claims of injury” and “consider the effect on each party of the granting or withholding
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`of the requested relief.” Winter, 555 U.S. at 24 (internal quotation marks and citation
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`omitted). The public interest inquiry, by contrast, “primarily addresses impact on
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`non-parties rather than parties.” League of Wilderness Defs./Blue Mountains
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`Page 10 –OPINION & ORDER
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`Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). When the
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`government is a party, these last two factors of the preliminary injunction analysis
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`will merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
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`Here, the Court notes that the State of Oregon has enacted a number of
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`statutes authorizing healthcare workers to assist police with DUII investigations
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`and, in certain situations, shielding them from liability. See ORS 133.621
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`(authorizing licensed physicians and those acting under the direction of physicians to
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`“withdraw bodily substances” to “gather evidence in a criminal investigation” and
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`providing that they “shall not be held civilly liable for gathering evidence in a criminal
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`investigation in a medically reasonable manner at the request of a peace officer.”);
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`ORS 676.300 (authorizing healthcare providers to notify law enforcement if they
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`believe a patient is going to drive while intoxicated and shielding them from liability
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`for making such reports); ORS 676.260 (obliging healthcare providers to report to
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`police the results of blood tests showing intoxicants following motor vehicle
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`accidents); ORS 676.280 (shielding healthcare providers from liability for reporting
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`blood alcohol levels). These statutes reflect a broad policy of permitting, or in some
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`instances requiring, healthcare providers to assist police with DUII investigations
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`and shielding them from the liability arising from that assistance. Granting the
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`requested injunction as to Providence would run contrary to that public interest.
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`In addition, the injunction Plaintiff requests would be effectively impossible to
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`implement. Plaintiff seeks to enjoin involuntary catheterization in “misdemeanor”
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`DUII investigations, impliedly conceding that involuntary catheterization may be
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`Page 11 –OPINION & ORDER
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`permissible in cases of felony DUII. In Oregon, a DUII becomes a felony if the
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`defendant has at least two prior convictions for DUII within a certain timeframe.
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`ORS 813.011(1). This accounts for convictions in other jurisdiction, which might
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`require a close comparison of the statutes of other states to those of Oregon, and the
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`answer might well turn on information that is not available to the investigating
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`officer. More to the point, whether a DUII is a misdemeanor or a felony is a charging
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`decision made by the prosecuting attorney, rather than the investigating officer. It
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`would be impracticable to make the distinction between misdemeanor and felony
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`DUII investigations that Plaintiff’s motion seeks.5
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`The Court concludes that the balance of the equities and the public interest
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`weigh against granting the requested injunction.
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`CONCLUSION
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`Even if the Court were to accept, for purposes of this motion, that there are at
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`least serious questions going to the merits of Plaintiff’s claims, the other Winter
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`factors weigh strongly against the requested injunction. Plaintiff’s Motion for a
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`Preliminary Injunction, ECF No. 87, is therefore DENIED.
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`It is so ORDERED and DATED this
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`4th
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` day of September 2024.
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`/s/Ann Aiken
`ANN AIKEN
`United States District Judge
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`5 Of note, in October 2019 Plaintiff had a prior conviction for DUII in Oregon from 2014, Armstrong
`Decl. Ex. 6, and testified to previous arrests for DUII in other states but could not recall how many
`arrests. Armstrong Decl. Ex. 1, at 6.
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`Page 12 –OPINION & ORDER
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