Opinion
6:19-cv-01706-MK
11-22-2021
TERENCE WILLIAM CARR, Plaintiff, v. OLGA ALVAREZ; JILL HOELTING; VIVIENNE CHAPLEO; WALTER R. MILLER, JR.; JIM PORTER; SHANE L. NELSON; ANGELA LEE-MANDLIN; JONATHAN CHAR, Defendants.
FINDINGS AND RECOMMENDATION
Mustafa T. Kasubhai United States Magistrate Judge
Pro se Plaintiff Terrance Carr filed this lawsuit in October 2019 against seven Defendants, including Deschutes County Circuit Court Judge Walter R. Miller (“Judge Miller”); City of Bend Police Chief Jim Porter (“Chief Porter”); Deschutes County Sheriff Shane Nelson (“Sheriff Nelson”); and private attorneys Angela T. Lee-Mandilin and Jonathan Char (“Attorney Defendants”) for alleged violations of his civil rights. See Second Amend. Compl., ECF No. 7 (“SAC”). United States District Judge Ann Aiken adopted this Court's Findings and Recommendation (“F&R”), granting Judge Miller's motion to dismiss with prejudice, Chief Porter's and Attorney Defendant's motions to dismiss without prejudice, and Sherriff Nelson's motion for summary judgment without prejudice. March 5, 2021 Op. & Order 1, ECF No. 53; see also Carr v. Alvarez, No. 6:19-cv-01706-MK, 2021 WL 851878, at *1 (D. Or. Mar. 5, 2021) (“March 2021 O&O”). The March 2021 O&O gave Plaintiff fourteen days to file an amended complaint. Plaintiff filed a timely Third Amended Complaint (“TAC”) ten days later. See ECF No. 54. Currently pending before the Court are the following Defendants' motions to dismiss the TAC: Judge Miller's motion to dismiss and for entry of a limited judgment of dismissal (ECF No. 57); Chief Porter's motion to dismiss (ECF No. 58); Sherriff Nelson's motion for a judgment on the pleadings or, alternatively, to dismiss (ECF No. 59); and Attorney Defendant's motion to dismiss (ECF No. 65). For the reasons that follow, the motions should be granted.
Judge Aiken concluded that the statute of limitations issue identified in the F&R in relation to Sherriff Nelson could potentially be “curable through amendment” and therefore dismissed that claim without prejudice; the Order adopted “the remainder of Judge Kasubhai's F&R (doc. 51) in its entirety.” Id.
BACKGROUND
Plaintiff's lawsuit arises out of a dispute with his neighbors that ultimately led to the imposition of a stalking protective order against him. See TAC at 2-4; see also Warren Decl. Ex. 1, ECF No. 17-1; Steele Decl. Exs. 1-4, ECF Nos. 44-1. At some point before May 27, 2015, at the suggestion of Bend police officers, Plaintiff's neighbors filed a stalking claim against him in Deschutes County Circuit Court. TAC at 2. On May 27, a Bend police officer served a summons for Plaintiff to appear in state court. Id. Attorney Defendant Angela Lee-Mandlin represented Plaintiff in relation to the stalking and criminal matters. Id. at 2-3; see also Steele Decl. Ex. 1, ECF No. 44-1.
On June 3, Plaintiff appeared before Judge Miller who ultimately issued a restraining order against Plaintiff. Id. at 2-3. Forty-three days later, Plaintiff was arrested “indignantly on purpose to humiliate him” for violating the order and charged with “on two counts of stalking . . . and two felony counts of violating a stalking order.” Id. at 3. Prior to his release, Plaintiff “was ordered to be on probation which required a gps ankle bracelet tracking device[.]” Id. Plaintiff and his partner “decided to flee his home for safety, in fear of harassment and re[-]arrest and traveled to his [partner's] condo in Portland.” Id. Unsatisfied with Defendant Angela Lee-Mandlin's representation, Plaintiff fired her. Id. By January 2016, Plaintiffs new attorney secured a plea bargain in relation to the stalking order violation that resulted in Plaintiffs firearms being seized. Id.
At various points in the TAC Plaintiff also asserts that he was deprived of his “constitutional rights . . . under color of law, ” citing 18 U.S.C. § 242. Id. at 2; see also Id. at 3 (alleging “loss of liberty, privileges, and rights”). The TAC also generally references Oregon criminal laws including Fraud, ORS § 165.690; Extortion, ORS § 165.075; and Theft, ORS § 164.105. Id. at 5-6.
STANDARD
Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 (2013) (quotation marks omitted). As such, a court is to presume “that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
Where the plaintiff “fails to state a claim upon which relief can be granted, ” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Nevertheless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, in many circumstances, instructs the pro se litigant regarding deficiencies in the complaint and grants leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se plaintiffs claims may be dismissed with prejudice only where it appears beyond doubt the plaintiff can prove no set of facts that would entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).
DISCUSSION
Liberally construing the TAC, the Court assumes Plaintiff is pursuing his federal claims under 42 U.S.C. § 1983, which “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal quotation marks omitted). To establish violation of a federal constitutional right under 42 U.S.C. § 1983, a party must show “(1) that a right secured by the Constitution or the laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of State law.” Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). The first step in a § 1983 claim is to “identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994).
Because the TAC fails to cure the deficiencies previously identified by the Court, Defendants' motions should be granted. As to Plaintiff's new references that potentially implicate federal and state criminal law, those claims should be dismissed as well because they do not provide a basis for civil liability. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (holding that 18 U.S.C. §§ 241 and 242 “provide no basis for civil liability”) (citations omitted); Tuomela v. Waldorf-Astoria Grand Wailea Hotel, 2020 WL 3490027, at *2 (D. Haw. June 26, 2020) (“courts consistently dismiss civil causes of action based on criminal statutes”). Accordingly, the Court declines to discuss those claims further.
In the interest of judicial economy, the Court addresses only the arguments raised by Defendants that it finds dispositive.
I.Preliminary Matters
Before addressing the merits of Plaintiff's claims in relation to Defendants' motions, the Court must resolve two threshold issues: (1) given Plaintiff's various filings, which document is the operative complaint in this case; and (2) Defendants' request that the Court take judicial notice of certain documents in the record.
As to the first issue, the Court observes that in response to the Court's leave to file a third amended complaint, Plaintiff filed two documents: one titled “Third Amended Advanced Federal Criminal Complaint Against Deschutes County Officials” (ECF No. 54); and another titled “Criminal Complaint Against Deschutes County Officials” (ECF No. 55). For purposes of this F&R, the Court only considers allegations specifically contained in the TAC, lodged at ECF No. 54, and assumes the facts contained in the “Background” section of this F&R as true as it must at this stage of the proceedings. See Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). To the extent that Plaintiff seeks to raise new claims in his “Criminal Complaint, ” and in his responses to the various motions in the record, the Court declines to consider those claims given the Court's prior explicit instruction that the Court would only consider allegations in his amended complaint.” See February 18, 2021 F&R at *14 (instructing Plaintiff that “should he elect to lodge a Third Amended Complaint, he must reallege each of his claims, including the specific facts underlying each claim, and that he ‘may not incorporate any part of [his] prior pleading[s] by reference'”) (quoting LR 15-1(c)), ECF No. 51; see also Carr v. Alvarez, No. 6:19-cv-01706-MK, 2021 WL 850558, at *7 (D. Or. Feb. 18, 2021) (“February 2021 F&R”). However, given Plaintiff's pro se status, and that the Court has not considered the “Criminal Complaint” in reaching its recommended disposition of this case, the Court declines to strike that pleading from the record. As such, Sherriff Nelson's motion to strike (ECF No. 69) the “Criminal Complaint” is DENIED.
As to the second issue, Defendants' requests for Judicial Notice of the Deschutes County Circuit Court's Final Stalking and Protective Order and docket entries are GRANTED. See Defendant Jim Porter's Rule 12 Mot. Dismiss Pl.'s Compl., 2, ECF No. 58 (“Porter Mot.”); Defendants' Lee-Mandilin and Char's Mot. Dismiss Pl.'s Compl. 3, ECF No. 65 (“Attorneys' Mot.”); see also Coultas v. Payne, No. 3:11-cv-45-AC, 2015 WL 5920645, at *3 (D. Or. Oct. 9, 2015) (“The court may ‘take judicial notice of undisputed matters of public record . . . including documents on file in federal or state courts.'”) (quoting Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012)).
II. Judge Miller
The February 2021 F&R recommended dismissing the claims against Judge Miller “with prejudice.” 2021 WL 850558, at *7. Judge Aiken adopted that portion of the recommendation in her March 2021 O&O. See 2021 WL 851878, at *1. As such, this claim is not properly before the Court and Judge Miller's motion should be granted.
Because this F&R ultimately recommends dismissing all claims in this case with prejudice, the Court need not address Judge Miller's request for a limited judgment pursuant to Fed. R. C. P. 42(b), as the Court will recommend entering a judgment dismissing all of Plaintiff's claims.
III. Chief Porter
Chief Porter moves to dismiss Plaintiff's claims against him because Plaintiff failed to allege Chief Porter's personal involvement in any acts or omissions that may have violated Plaintiff's Constitutional rights. Porter Mot. 3-5, ECF No. 58. More specifically, Chief Porter again argues that Plaintiff's § 1983 claims fail because he may not proceed on a theory of respondeat superior liability. Id. at 3. Rather, to hold supervisors individually liable in § 1983 suits, a plaintiff must allege either (1) the supervisor's “personal involvement in the constitutional deprivation, ” or “(2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). As Starr explained:
The requisite causal connection can be established by setting in motion a series of acts by others, or by knowingly refusing to terminate a series of acts by others, which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury. A supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in
the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.Id. at 1207-08 (internal citations, alterations, and quotation marks omitted). To premise a supervisor's alleged liability on a policy promulgated by the supervisor, a plaintiff must identify a specific policy and establish a “direct causal link” between that policy and the alleged constitutional deprivation. See, e.g., City of Canton v. Harris, 489 U.S. 378, 385 (1989); Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992).
In the February 2021 F&R, the Court highlighted the specific deficiencies of the second amended Complaint (“SAC”) as follows:
Here, other than listing Chief Porter in the caption of the SAC, Plaintiff otherwise fails to describe facts sufficient to demonstrate Chief Porter's personal involvement in a specific constitutional violation or to establish a causal connection between Chief Porter's conduct and a constitutional violation. . . . Plaintiff has also failed to describe any policy promulgated by Chief Porter that led to a specific constitutional deprivation suffered by Plaintiff.2021 WL 850558, at *4. The TAC suffers from the same fatal flaws. Most significant, however, is the TAC failure to allege that Chief Porter acted either in his individual or official capacity and again simply names Chief Porter in the caption of the TAC and lists him as a Defendant who “Represents all Police Officials involved in Wrongdoing.” TAC at 1. As the Court previously explained, that level of generality is insufficient. As such, Chief Porter's motion to dismiss should be granted.
IV.Sherriff Nelson
Sheriff Nelson again asserts that dismissal is appropriate based on Plaintiff's failure to cure the statute of limitations issues identified in the February 2020 F&R. See Shane Nelson Mot. J. Pleadings or Alternatively Dismiss, ECF No. 59.
There is no specified statute of limitations for an action under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 266 (1985); Pouncil v. Tilton, 704 F.3d 568, 573 (9th Cir. 2012). “[F]ederal courts [therefore] look to the law of the state in which the cause of action arose and apply the state law of limitations governing [the] analogous cause of action.” Pouncil, 704 F.3d at 573. “Oregon's two-year statute of limitations . . . applies to actions under 42 U.S.C. § 1983.” Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002) (citation omitted).
In the February 2021 F&R, the Court explained why Plaintiff's claims in the SAC were barred by the statute of limitations:
The conduct in the SAC that potentially implicates Sheriff Nelson, however, seems to conclude with Plaintiff's release from jail on July 9, 2015. Thus, in order to comply with the two-year statute of limitations, Plaintiff would have had to bring his lawsuit against Sheriff Nelson by July 9, 2017. Plaintiff filed the initial Complaint in this lawsuit in October 2019. As such, the Court should find that Plaintiff's claim against Sheriff Nelson is barred by the statute of limitations.2021 WL 850558, at *7.
Plaintiff failed to cure that deficiency. The TAC alleges that Plaintiff was arrested, presumably by a member of Deschutes County Sheriff's Office under the supervision of Sherriff Nelson, on July 16, 2015, and was released “24 hours later.” TAC 2-3. In order to comply with the two-year statute of limitations, therefore, Plaintiff would have had to file this lawsuit against Sheriff Nelson by July 17, 2017. Plaintiff failed to do so here. Nor has Plaintiff provided the Court with a legally sufficient explanation as to why the two-year statute of limitation does not apply in this case despite the Court expressly granting him leave to do so. See ECF Nos. 1, 51, 53, 54. As such, the Court should find that any claims against Sheriff Nelson are barred by the statute of limitations. Sheriff Nelson's motion to dismiss should therefore be granted.
V. Attorney Defendants
Generally, private parties are not state actors for purposes of § 1983. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). A litigant may, however, “seek damages under 42 U.S.C. § 1983 from a private party based on the violation of a constitutional right” if the plaintiff can show that “the private party engaged in state action under color of state law[.]” Brunette v. Humane Soc 'y of Ventura Cty., 294 F.3d 1205, 1209 (9th Cir. 2002). Four tests have been developed to determine “whether a private [party's] actions amount to state action: (1) the public function test; (2) the joint action test; (3) the state compulsion test; and (4) the governmental nexus test.” Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir. 2002) (citation omitted). However, the Ninth Circuit has held that “[a] private lawyer representing a client in the lawyer's traditional adversarial role is not considered a state actor for purposes of § 1983.” Subramaniam v. Mosman, 2017 WL 6887138, at *3 (D. Or. Oct. 31, 2017) (citing Simmons v. Sacramento Cty. Superior Court, 318 F.3d at 1156, 1161 (9th Cir. 2003)).
Here, dismissal is appropriate because a review of the TAC again demonstrates that Attorney Defendants “merely represented their client in the traditional adversarial role. Thus, [Plaintiffs] unsupported conclusions are inadequate to state a claim under § 1983 against defendants.” Committee v. Miller Nash Graham & Dunn, LLP, No. 3:18-cv-01013-AA, 2020 WL 410189, at *3 (D. Or. Jan. 23, 2020), reconsideration denied, 2020 WL 1821455 (D. Or. Apr. 10, 2020).
However, given Plaintiff s pro se status, and out of an abundance of caution, the Court will treat Plaintiffs allegations of “collusion” as a potential conspiracy claim under § 1983. For the reasons explained below that claim also fails.
“To prove a conspiracy between the state and private parties under section 1983, [the plaintiff] must show an agreement or meeting of the minds to violate constitutional rights.” United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989). “Such an agreement need not be overt, and may be inferred on the basis of circumstantial evidence such as the actions of the defendants.” Crowe v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (citation omitted). “To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002).
In the February 2021 F&R, the Court instructed Plaintiff on the level of specificity required to plead a conspiracy claim:
To the extent Plaintiff has attempted to plead a conspiracy under § 1983, he has not done so with sufficient factual specificity to state a viable claim. In other words, “[h]e has not pleaded specific facts to show that such an agreement existed, what it entailed, what was each defendant's objective in the alleged conspiracy, or that they communicated” with one another. Solomon v. Las Vegas Metro. Police Dep't, 441 F.Supp.3d 1090, 1099-100 (D. Nev. 2020).2021 WL 850558, at *4.
The TAC's assertion that “every person worked against [Plaintiff] colluding to achieve the detriment results that [Plaintiff] has suffered” fails to specifically identify that any party, including Attorney Defendants, entered into an agreement to deprive Plaintiff of a right protected under the Constitution. As such, Attorney Defendant's motion to dismiss should be granted.
VI. Dismissal with Prejudice
In civil rights cases where the plaintiff appears pro se, the court construes the pleadings liberally and must afford plaintiff the benefit of any doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc). Ordinarily pro se litigants are given leave to amend his or her complaint. Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623-24 (9th Cir. 1988). However, if it is “absolutely clear that the deficiencies of the complaint could not be cured by amendment, ” leave to amend need not be given. Id. (internal quotation marks omitted). Furthermore, a “district court's discretion to deny leave to amend is particularly broad where a Plaintiff previously has amended the complaint.” World Wide Rush, LLC v. City of L.A., 606 F.3d 676, 690 (9th Cir. 2010). Here, Plaintiff has been given multiple chances to state a claim and has failed to do so despite having the relevant law and complaint deficiencies explained to him. See ECF Nos. 1, 4, 5, 7, 51, 53, 54. Therefore, the Court should exercise its discretion and dismiss Plaintiff's claims with prejudice as to all Defendants. See Stone v. Van Wormer, No. 3:19-cv-00144-HZ, 2019 WL 7194565, at *4 (D. Or. Dec. 26, 2019) (dismissing complaint with prejudice where the plaintiff had been “given three chances to state a claim and has failed to do so despite having the relevant law and complaint deficiencies explained to him”).
RECOMMENDATION
For the reasons above, Defendants' motions to dismiss (ECF Nos. 57, 58, 59, and 65) should be GRANTED. The Court should exercise its discretion and dismiss Plaintiff's claims with prejudice and a judgment should be entered.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14