Opinion
CV 01-1422-BR
November 15, 2002
Rodney F. Wright, Portland, OR, Plaintiff, Pro Se.
Hardy Myers, Attorney General, Phillip M. Bender, Assistant Attorney General, Salem, OR, for Defendants State of Oregon, Oregon State Police, Oregon Department of Corrections, The Honorable James R. Ellis, James J. McIntyre, John K. Hoover, Michael D. Schrunk, The Honorable Robert L. Kirkman, Diane Rea, Dianne L. Middle, and Ronald C. Ruecker (collectively referred to as State Defendants), Thomas Sponsler, Multnomah County Attorney, Gerald H. Itkin, Deputy Multnomah County Attorney, Portland, OR, Attorneys for Defendants Multnomah County, Laurie Calderbank, David A. Bordeaux, Tawnie Gray, Sandy Rorick, Dan Noelle, Elyse Clawson, and Alan Trautwein (collectively referred to as County Defendants), Jeffrey L. Rogers, Portland City Attorney, J. Scott Moede, Deputy Portland City Attorney, Portland, OR, for Defendants City of Portland, Terry Wagner, and Ronald Sturdevant (collectively referred to as City Defendants), David K. Miller, S. Michael Rose, Miller Wagner LLP, Portland, OR, for Defendants Richard Woller; Carl Landowske; and Richard Wollert, Ph.D., Associates (collectively referred to as Wollert Defendants), Jonathan M. Radmacher, McEwen, Gisvold, Rankin, Carter Streinz, LLP, Portland, OR, for Defendants David Audet; Wade P. Bettis, Jr.; John C. Geil; Gary Kahn; and Rieke, Geil Savage, P.C. (collectively referred to as Attorney Defendants)
OPINION AND ORDER
Plaintiff, appearing pro se, initiated this action with the filing of a Complaint alleging civil rights and state law claims against more than 30 individuals and entities. On February 20, 2002, this Court issued an Opinion and Order dismissing several of Plaintiff's claims with prejudice, and granting Plaintiff leave to file an Amended Complaint curing the deficiencies noted with respect to the remaining claims.
Plaintiff's claims against the Wollert Defendants and the Attorney Defendants were dismissed in their entirety, with prejudice, and Judgments of Dismissal as these Defendants were entered respectively on March 4, 2002 (#86) and March 5, 2002 (#88).
On August 6, 2002, Plaintiff filed an Amended Complaint (#105). Currently before the Court are three Motions to Dismiss (#106, #108, and #111) filed by the remaining Defendants. All three Motions to Dismiss are GRANTED, and this action is dismissed with prejudice.
BACKGROUND
The Court's February 20, 2002, Opinion and Order addressed at length the procedural background underlying Plaintiff's state court conviction, and those matters will not be repeated here. Instead, this Opinion and Order will focus on the events occurring after that date.
This Court set forth the following specific requirements for Plaintiff's Amended Complaint in the February 20, 2002, Opinion and Order:
Plaintiff may amend his Complaint only as to the claims against the following Defendants: State of Oregon (for injunctive relief only), Multnomah County, Gray, Trautwein, Calderbank, Rorick, Clawson, City of Portland, Sturdevant, and Wagner.
* * *
In addition, Plaintiff must plead facts to show he complied with the requirements of the Oregon Tort Claims Act, Or. Rev. Stat. § 30.275, with respect to any state law claims against public bodies or their employees. If Plaintiff cannot assert truthfully that he has complied with the Act's requirements, he may not plead any state law claims against any public bodies or their employees acting in their official capacities.
Plaintiff also must plead facts sufficient to enable the Court to determine whether Plaintiff adequately served all remaining Defendants with the original Summons and Complaint pursuant to ORCP 7.
Finally, to the extent Plaintiff asserts claims based on a racially-motivated conspiracy arising within two years of the filing of his original Complaint, Plaintiff must plead sufficient facts to support such a conspiracy.
Plaintiff's Amended Complaint makes no allegations concerning compliance with the requirements of the Oregon Tort Claims Act, Or. Rev. Stat. § 30.275.
With respect to service of the original Summons and Complaint, Plaintiff alleges:
[W]hile acting in good faith, service was made at the attorney offices of the defendant's place of business by mailing a true copy of the summons and complaints to the defendants, pursuant to ORCP 7. This was done via first class, certified, mail to apprise the defendants of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend. The defendants failed to complete the time-received requirement as noted on the certified mail return receipt cards.
Defendants associated with the City of Portland through Place: c/o Jeffrey L. Rogers, 1221 S.W. Fourth Ave., Suite 430
Date Received: 10/15/01
Defendants associated with the Multnomah County through Place: c/o Thomas Sponsler, Portland Bldg., 1120 S.W. Fifth Ave. Rm. 1530, Portland, OR 97204
Date Received 10/15/01
Defendants associated with the State of Oregon through Place: c/o Hardy Myers, Justice Bldg., 1162 Court Street, NE, Salem OR 97301
Date Received: 10/15/01
(Am. Compl. at 4-5.)
Plaintiff does not plead specific facts supporting a claim of racially-motivated conspiracy. Rather, Plaintiff makes conclusory allegations such as the following:
By authorizing the involuntary extension of confinement of plaintiff beyond the maximum expiration date of the sentence and compelling sex offender registration, defendants . . . intentionally conspired with racial [sic] motivated amicus to violate plaintiff's rights.
(Am. Compl. at 4.)
The remaining Defendants move to dismiss Plaintiff's Amended Complaint, arguing it fails to cure the deficiencies noted in the Opinion and Order dismissing the original Complaint.
LEGAL STANDARDS
On a motion to dismiss under Fed.R.Civ.P. 12(b), all allegations in the complaint are considered true and are construed in the plaintiff's favor. Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir.), cert. denied, 528 U.S. 1005 (1999). Moreover, when the plaintiff appears pro se, the court "must liberally construe [the plaintiff's] inartful pleading." Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996). Particularly in a pro se civil rights case, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given leave to amend his complaint unless it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Sands v. Lewis, 886 F.2d 1166, 1168 (9th Cir. 1989) (citations omitted).
DISCUSSION I. Oregon Tort Claims Act
Plaintiff's Amended Complaint continues to allege defendants violated various Oregon statutes and provisions of the Oregon Constitution. As noted above, however, Plaintiff does not allege compliance with the requirements of the Oregon Tort Claims Act, Or. Rev. Stat. § 30.275.
Accordingly, to the extent Plaintiff's Amended Complaint may be construed as an attempt to allege claims for relief based upon violation of state law, it must be dismissed.
II. Service of the Original Summons and Complaint
This Court does not have jurisdiction over the remaining Defendants unless they have been served properly under Fed.R.Civ.P. 4. Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988). Fed.R.Civ.P. 4(j)(2) provides for service upon a state, municipal corporation, or other governmental organization "by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by" state law.
Likewise, under Fed.R.Civ.P. 4(e)(2), service on an individual may be made either by "delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process" or pursuant to the law of the state.
Plaintiff does not allege he delivered a copy of the summons and complaint to the chief executive officer of the State of Oregon, Multnomah County, or the City of Portland, or that he personally served the individual Defendants in accordance with Fed.R.Civ.P. 4. As such, the Court must determine whether service was adequate under Oregon law.
In Baker v. Foy, 310 Or. 221, 797 P.2d 349 (1990), the Oregon Supreme Court articulated a two-part test for determining the adequacy of service. First, the court must determine whether the method used was permitted by ORPC 7D. Id. at 228-29. If so, service is presumed adequate. If the requirements of ORCP 7D are not met, then the court must consider whether service is otherwise adequate under the reasonable notice standard set forth in ORCP 7D(1). Id. The court must examine the totality of the circumstances as they were known to plaintiff at the time of service and determine whether service was adequate to provide the defendant with reasonable notice of the existence and pendency of the action against him. Hoeck v. Schwabe, Williamson Wyatt, 149 Or. App. 607, 617, 945 P.2d 534 (1997).
Pursuant to ORCP 7D(3), service may be made on the State, counties, and cities only by personal or office service. Service on individuals may be either personal, or "by mailing a true copy of the summons and the complaint to the defendant by first class mail and by any of the following: certified or registered mail, return receipt requested, or express mail." ORCP 7D(2) (emphasis added).
Plaintiff's Amended Complaint establishes he did not effect service on the remaining Defendants in accordance with ORCP 7D. As such, Plaintiff must show service was reasonably calculated to inform Defendants of the action against them and to afford them a reasonable opportunity to defend. ORCP 7D(2); Edwards v. Edwards, 310 Or. 672, 678-79, 801 P.2d 782 (1990).
In his response to the Motions to Dismiss, Plaintiff states:
5. Plaintiff was unable to ascertain the accuracy of the defendants' private dwelling houses or usual places of abode through local utilities and the phone book because of the nature of defendant's positions in public office.
6. Plaintiff "knew" service could not be accomplished if information possessed or available after reasonable effort did not provide basis to attempt service or to know service was possible. Carlson v. Martin, 160 Or. App. 350, 983 P.2d 1031 (1991).
(Pl.'s Mem. in Supp. of Obj. to Mot. to Dismiss at 2.)
Plaintiff further argues "mail service" on an attorney is reasonably calculated to apprise the attorney's client of an action and afford a reasonable opportunity to appear and defend. Murray v. Murray, 88 Or. App. 143, 744 P.2d 1005 (1987).
The cases cited by Plaintiff are distinguishable. In Murray, the court held service by certified mail on the husband's attorney of a motion to clarify a final judgment in a marriage dissolution was adequate. Id. at 145. The case did not involve service of an initial complaint and summons, as here.
Carlson v. Martin, on the other hand, did involve service of an initial summons and complaint. It differs, however, in that it involves a specific provision of ORCP 7D(4) related to substituted service on the Department of Transportation in an action involving a motor vehicle. Carlson, 160 Or. App. at 1031.
Plaintiff has not satisfied his burden of showing service of the original Complaint and Summons was otherwise adequate under the reasonable notice standard set forth in ORCP 7D(2). Ordinarily, Plaintiff would be entitled to correct the inadequate service by properly serving Defendants. Where, as here, the underlying Amended Complaint is subject to dismissal for failure to state a claim upon which relief may be granted, any attempt to correct the service defect would be futile.
III. Conspiracy Allegations
To prove a conspiracy to violate constitutional rights under 42 U.S.C. § 1981 or § 1985, a plaintiff must show an agreement or meeting of the minds. United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir.), cert. denied, 493 U.S. 809 (1989). "To be liable, each participant must at least share the common objective of the conspiracy." Id. (internal quotation and citation omitted); see also, Taylor v. List, 880 F.2d 1040, 1048 (9th Cir. 1989).
Conclusory allegations are insufficient to state a claim of conspiracy. Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991), cert. denied, 503 U.S. 938 (1992); see also Karim-Panahi, 839 F.2d at 626 (mere allegation of conspiracy without factual specificity is insufficient to state claim under § 1985).
Plaintiff's Amended Complaint fails to allege facts supporting a claim of conspiracy. Rather, Plaintiff makes conclusory allegations that Defendants' actions were motivated by a racially discriminatory conspiracy.
Accordingly, Plaintiff's Amended Complaint fails to state a claim upon which relief may be granted.
IV. Heck v. Humphrey
Finally, although Defendants did not move for dismissal on this basis, Plaintiff's Amended Complaint must be dismissed under Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, a plaintiff cannot maintain a § 1983 action to recover damages for "harm caused by actions whose unlawfulness would render [his] conviction or sentence invalid" where his sentence and conviction have not previously been reversed, expunged, declared invalid, or called into question upon issuance of a writ of habeas corpus by a federal court. Id. at 486-87. In other words, unlawful confinement does not constitute a compensable injury under § 1983 until the confinement has been invalidated. See id. at 486 n. 7.
Plaintiff alleges Defendants conspired to violate his constitutional rights by illegally detaining him on a post-prison supervision violation. Plaintiff does not allege, however, that the illegality of his detention has previously been established. Accordingly, Plaintiff's claim is barred by Heck.
CONCLUSION
The Motions to Dismiss filed by the County Defendants (#106), the City Defendants (#108), and the State Defendants (#111) are GRANTED. This action is DISMISSED with prejudice.
IT IS SO ORDERED.