Opinion
Civil No. 00-1165-JO
June 8, 2001
Plaintiff Pro Se:
Albert F. Christman, Clackamas, OR
Attorneys for Defendants:
Lynne D. Rennick, OREGON DEPARTMENT OF JUSTICE Trial Division, Salem, OR
Eric J. Fjelstad, SMITH FJELSTAD, Gresham, OR
Edward S. McGlone, III, CLACKAMAS COUNTY GENERAL COUNSEL, Oregon City, OR
OPINION AND ORDER
Plaintiff Albert Christman brings this civil rights action pro se against defendants State of Oregon, Judge Robert Morgan, Judge Robert Sealander, Judge Patrick Gilroy, Judge Deanne Darling, Chief Justice Wallace Carson, Carol Lofgrin, Marcy Cady, Asa Lewis, Joanne Lewis (together, the "state defendants"), two Court Appointed Special Advocates, Pat James and Barbara Johnson (the "CASA defendants"), and Clackamas County Mental Health, pursuant to 42 U.S.C. § 1983 and 1985. In essence, plaintiff alleges that the various defendants have violated his constitutional rights by, among other things, conspiring to place his step-daughter in state custody. Plaintiff seeks injunctive relief but no monetary relief.
In earlier proceedings, this court granted the state defendants' and the CASA defendants' Rule 12(b)(6) motion to dismiss for failure to state a claim with leave to file an amended complaint against the CASA defendants only. Clackamas County Mental Health ("CCMH") now moves to dismiss (#39) under Rule 12(b)(6) for failure to state a claim. Plaintiff has failed to file any response to the motion.
For the reasons stated below, Clackamas County Mental Health's motion to dismiss (#39) is GRANTED.
STANDARD
A Rule 12(b)(6) motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove "no set of facts in support of his claim which would entitle him to relief." Gilligan v. Jamco Development Corp., 108 F.3d 246, 248 (9th Cir. 1997) (quoting Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995)); see also Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218 (9th Cir. 1995). The court must treat all facts alleged in the complaint as true. Parks School of Business, Inc., 51 F.3d at 1484. All doubts are resolved in favor of the nonmoving party. Keams v. Tempe Technical Institute, 39 F.3d 222, 224 (9th Cir. 1994).
Pro se complaints are held to a less strict standard than those drafted by a lawyer. Bonner v. Lewis, 857 F.2d 559, 563 (9th Cir. 1988). Before dismissing a pro se complaint, the court must, in many circumstances, instruct the pro se litigant as to the deficiencies in the complaint and grant leave to amend. See Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). Nevertheless, the court may dismiss a pro se complaint outright where it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Broughton v. Cutter Lab., 622 F.2d 458, 460 (9th Cir. 1980); see also Akao v. Shimoda, 832 F.2d 119, 120 (9th Cir. 1987).
DISCUSSION
CCMH moves to dismiss plaintiff's complaint on four grounds. CCMH contends that (1) plaintiff failed to properly effectuate service of process; (2) CCMH is not a "person" subject to liability under 42 U.S.C. § 1983; (3) plaintiff fails to state a claim upon which relief may be granted; and (4) plaintiff failed to commence this action within the two year statute of limitations. I agree with CCMH on all four grounds.
Plaintiff served CCMH with a copy of the complaint and summons by express mail. This fails to comply with the personal or office service requirements of Rule 4(j)(2) and ORCP 7D(3)(d), which apply to public bodies. Moreover, CCMH lacks the capacity to sue or be sued under Rule 17(b) and ORS 30.310 — 30.320, as it is only a mental health services agency of Clackamas County. See Keller v. City of Portland, 1998 WL 1060222 (D.Or. 1998) (Portland Police Bureau not a "person" under section 1983 and not a public body subject to suit under Oregon Tort Claims Act).
CCMH also moves to dismiss plaintiff's complaint on the ground that he has failed to allege any specific wrongdoing on its part, much less the kind of deprivation of rights, privileges, or immunities that are actionable under section 1983. To the extent the court is able to decipher the complaint, plaintiff's allegations against CCMH are as follows:
[CCMH] that you did by bigotry and prejudice conspire with SCF to brain wash and create a Stockholm Syndrome in Pamela Butler so as to destroy any and all relationship between Pamela Butler and the Plaintiff and that you did put forth and advocate the lies, distortions, fabrications, innuendos, and the unlawfull[sic] and criminal acts of State Agencys[sic] . . . so as to unlawfully and illegally affect the life, liberty and property of the Plaintiff, and that you did engage in a conspiracy to violate the Constitutional and Civil rights of the Plaintiff, by lies, distortions, fabrications and innuendo.
Complaint, p. 24. I agree with CCMH that even if CCMH were a proper defendant, the complaint fails to state a section 1983 claim against it. See Fed.R.Civ.P. 8.
Finally, section 1983 claims are governed by the two-year statute of limitations set forth in ORS 12.110(1). See Wilson v. Garcia, 471 U.S. 261, 276-280 (1994); see also Sanok v. Grimes, 306 Or. 259, 262-263, 760 P.2d 288 (1988). Plaintiff alleges conduct that occurred in 1992, 1993 and 1994. He filed this case in August 2000. The complaint alleges no basis on which to justify his delay in commencing this action. Plaintiff's claim is thus untimely.
In summary, CCMH's motion to dismiss is well-taken and is granted in its entirety. I also note that although plaintiff was granted leave to file an amended complaint against the CASA defendants within 20 days of the date of my earlier opinion (February 7, 2001), he has failed to do so. Consequently, to the extent his claim against the CASA defendants may have survived my earlier rulings, plaintiff's claim against them is now dismissed with prejudice.
CONCLUSION
Clackamas County Mental Health's motion to dismiss (#39) is GRANTED. This action is dismissed with prejudice and any other pending motions are denied as moot.