Opinion
3:22-cv-00662-SB
09-15-2022
IAN LEONARD CLARK, Plaintiff, v. MILWAUKIE POLICE DEPARTMENT; and KENNY SIMAC, Defendants.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Ian Clark (“Clark”) brings this 42 U.S.C. § 1983 action against the Milwaukie Police Department (the “MPD”) and MPD Officer Kenny Simac (“Simac”) (together, “Defendants”), alleging claims for violations of his right to equal protection and due process. Defendants move to dismiss Clark's complaint on the ground that he fails to state a claim upon which relief can be granted. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, but not all parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636. For the reasons explained below, the Court recommends that the district judge grant Defendants' motion to dismiss.
BACKGROUND
Clark's claims arise from incidents that took place at the Neighborhood Health Center (“NHC”) Milwaukie Dental Clinic on May 5 and June 14, 2021. (Compl. at 4-7, ECF No. 1.) Specifically, Clark alleges that an unnamed NHC dentist “assaulted” him during a “surgery” on May 5, 2021 when the dentist “fractured [Clark's] tooth,” and that during a follow-up visit on June 14, 2021, a “different dentist,” who, unlike the first dentist, administered “no anesthetic to cover the attack,” assaulted Clark “much less severely” and in an unspecified manner. (Id. at 45.)
Clark reached out to lawyers about the incidents at the NHC dental clinic but elected not to retain counsel. (Id. at 5.) Clark also reported the NHC dentists' conduct to the Oregon State Board of Dental Examiners (the “Board”). (Id.) After the Board “did nothing” and gave Clark the “strong impression” that it “ha[d] not conducted an investigation,” Clark sued the Board in Multnomah County Circuit Court and called the MPD as a “last resort for justice.” (Id.)
Clark spoke to Simac during his initial call to the MPD in mid-July 2021. (Id. at 4-5.) The call caused Clark to have “no doubt that [his] report of a crime would not be handled appropriately,” because “[a]fter Simac had got over his initial delight and surprise at the situation . . ., his tone became more hostile” and he “began to emphasize the ‘gay' sound in the word ‘investigation.'” (Id. at 5.) Clark alleges that Simac stated that Clark's dentists or the Board should handle the matter and attempted to “obscure [his] voice as he gave his name.” (Id.)
After the initial telephone call in mid-July 2021, “Simac purported or pretended to make inquiries while persistently diverting [Clark] away from him and towards the Board[.]” (Id.) Simac also contacted the Board but ended up speaking to a “Board representative [who] is a named co-defendant in [Clark's] case pending [in] Multnomah County [Circuit] Court[.]” (Id.)
Simac exchanged emails with Clark between July and September 2021, and Clark subsequently communicated with Simac's “superior officers” in late September 2021 and April 2022. (Id. at 4-5.) Clark alleges that Simac's emails “confirmed” that “[t]here was nothing reliable or truthful in [his] conduct,” because “Simac, either individually []or in collaboration with the Board rep[resentative], decided to misrepresent [that] the Board's investigator [w]as a medical doctor and expert in criminal forensics,” even though the purported investigator was actually an “office clerk” who “types his bosses['] letters and gathers details [about dental-related] complaints . . . [and] holds no medical or legal qualifications.” (Id. at 5.) Clark alleges that Simac ultimately “reject[ed] [his] crime report” and “employed a pattern of diversion and pretense that decriminalized violence against ‘white' people (disambiguated as Caucasians).” (Id.)
Clark filed this action against Defendants on May 5, 2022, alleging claims for violation of his due process rights and discrimination based on his race and/or national origin. (Id. at 3-6.) Defendants' motion to dismiss followed.
Clark references discrimination based on his “nationality (‘English'),” and asserts that this was the “motivation for the [dentist's May 5] attack[.]” (Compl. at 5.) Clark, however, also maintains that the MPD's actions “decriminalize[d] violence against specific people,” namely, “male Caucasians identified as ‘English'” or “‘white' people (disambiguated as Caucasians).” (Id.)
LEGAL STANDARDS
To survive a motion to dismiss under FED. R. CIV. P. 12(b)(6), a plaintiff's “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Claims have “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (simplified).
“Pro se complaints are construed liberally and ‘held to less stringent standards than formal pleadings drafted by lawyers.'” Hoffman v. Preston, 26 F.4th 1059, 1063 (9th Cir. 2022) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)); see also Hebbe, 627 F.3d at 342 (“Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts' treatment of pro se filings.”). The court must “afford [a pro se plaintiff] the benefit of any doubt.” Hoffman, 26 F.4th at 1063 (quoting Hebbe, 627 F.3d at 342). “Unless it is absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Garity v. APWU Nat'l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (quoting Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995)).
DISCUSSION
I. PRELIMINARY MATTERS
In his complaint, Clark invokes the Fifth and Fourteenth Amendments and does not refer to the Equal Protection Clause. (Compl. at 3-6.) Clark states that he erred in invoking the Fifth Amendment and instead his discrimination claims are “equal protection” claims. (Pl.'s Obj. Defs.' Mot. Dismiss at 4-5, ECF No. 15.)
The Court construes Clark's discrimination claims as equal protection claims, and recommends that the district judge dismiss Clark's Fifth Amendment claim. See Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (“[The defendant] is a local law enforcement official, and the Fifth Amendment's due process clause only applies to the federal government.... [The plaintiff] has no cause of action under the Fifth Amendment, and the district court erred in failing to dismiss this claim.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment[,] a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.”).
II. DEFENDANTS' MOTION TO DISMISS
Defendants argue that Clark fails to allege a municipal liability (i.e., Monell) claim or facts that plausibly suggest Defendants violated Clark's right to equal protection or due process. (Defs.' Mot. Dismiss at 7, ECF No. 12.) The Court agrees that Clark has failed to state a plausible claim, and therefore recommends that the district judge grant Defendants' motion to dismiss.
A. Monell Claim
1. Applicable Law
“Section 1983 authorizes civil actions for the ‘deprivation of any rights . . . secured by the Constitution and laws' against a [‘person'] acting under color of state law.” Lockett v. Cnty. of L.A., 977 F.3d 737, 740 (9th Cir. 2020) (quoting 42 U.S.C. § 1983). The Supreme Court has held that “municipalities and other local governmental units [can] be sued as ‘persons' under § 1983.” Silva v. San Pablo Police Dep't, 805 Fed.Appx. 482, 484 (9th Cir. 2020) (citing Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978)); see also id. (“[D]epending on state law, a local law enforcement agency can be a separately suable entity.” (citing Streit v. City of L.A., 236 F.3d 552, 565-67 (9th Cir. 2001) and Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 n.2 (9th Cir. 1988))).
“[M]unicipalities may be liable . . . for constitutional injuries pursuant to (1) an official policy; (2) a pervasive practice or custom; (3) a failure to train, supervise, or discipline; or (4) a decision or act by a final policymaker.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602-03 (9th Cir. 2019). However, “[a] municipality may not . . . be sued under a respondeat superior theory.” Id. at 603 (citing Monell, 436 U.S. at 693-95). Thus, “[i]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality.” Jessen v. Cnty. of Fresno, 808 Fed.Appx. 432, 435 (9th Cir. 2020) (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 415 (1997)). Instead, “[a] plaintiff must . . . ‘show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link' between the municipal policy or custom and the deprivation of federal rights.” Id. (quoting Brown, 520 U.S. at 415).
2. Analysis
Defendants argue that Clark fails to state a Monell claim because he “alleges no practice, policy, or custom of the [MPD] that supposedly caused any violation of his constitutional rights.” (Defs.' Mot. Dismiss at 7.) The Court agrees. Even liberally construing Clark's allegations, Clark's complaint identifies an individual MPD officer's actions and handling of Clark's assault report, but fails to allege facts that plausibly suggest a link between a municipal policy or custom and the deprivation of any constitutional right. Thus, Clark fails to state a Monell claim, and the Court recommends that the district judge grant Defendants' motion on this ground.
The Court also notes that police departments are often “merely the vehicle through which [a] city fulfills its police functions,” not “a separate entity from the [c]ity . . . [that is] amenable to suit [under § 1983].” Shore v. City of Portland, No. 3:17-cv-01519-YY, 2018 WL 3469037, at *2 (D. Or. May 21, 2018) (collecting cases); Haliburton v. City of Albany Police Dep't, No. 3:04-cv-06062-KI, 2005 WL 2655416, at *2-3 (D. Or. Oct. 18, 2005) (“Haliburton has not made a showing that the City of Albany intended to create a separate legal entity when it formed the Police Department. Typically, the city itself is sued and not the police department.”). The parties do not address whether the MPD is a separate entity from the City of Milwaukie.
B. Fourteenth Amendment-Equal Protection Claims
1. Applicable Law
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” Boardman v. Inslee, 978 F.3d 1092 (9th Cir. 2020) (quoting Gallinger v. Becerra, 898 F.3d 1012, 1016 (9th Cir. 2018)). “To state a claim under . . . § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment[,] a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Shooter v. Arizona, 4 F.4th 955, 960 (9th Cir. 2021) (quoting Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013)).
“As the Supreme Court has recognized, ‘an equal protection claim can in some circumstances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that []he has been irrationally singled out as a so-called class of one.'” SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1122-23 (9th Cir. 2022) (quoting Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601 (2008)). To state a “class-of-one equal protection claim, the [plaintiff] must allege facts showing that [he has] been ‘(1) intentionally (2) treated differently from others similarly situated and that (3) there is no rational basis for the difference in treatment.'” Id. (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)).
2. Analysis
a. Class-of-One Equal Protection Claim
The Ninth Circuit has “join[ed] [its] sister circuits in holding that a class-of-one plaintiff must be similarly situated to the proposed comparator in all material respects,” and noted by way of example that the Second Circuit has “explained that class-of-one plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves,” and the Seventh Circuit likewise requires a plaintiff to be “directly comparable in all material respects to the comparator.” SmileDirectClub, 31 F.4th at 1123 (simplified). Clark's complaint does not identify any comparators, let alone comparators that are similarly situated to Clark in all material respects. Accordingly, the Court concludes that Clark fails to state a class-of-one equal protection claim. See Nisley v. Rosenblum, No. 3:21-cv-01011-SB, 2022 WL 1630011, at *4 (D. Or. May 23, 2022) (“Nisley fails specifically to identify the district attorneys who were similarly situated to him. Although he alleges that other district attorneys were suspended from the practice of law but continued to hold office, Nisley fails to address, among other things, whether these attorneys' suspensions were for a comparable length of time. Given this lack of specificity, Nisley fails plausibly to allege that he is similarly situated to his proposed comparators in all material respects, and thus fails to state an equal protection claim.”).
b. Class-Based Equal Protection Claim
Even liberally construing Clark's allegations, Clark has not pled any facts to support his belief that intentional discrimination based on his race or national origin was a motivating factor in Simac's or any MPD officer's actions. Cf.180 Land Co. LLC v. City of Las Vegas, 833 Fed.Appx. 48, 50-51 (9th Cir. 2020) (“Dismissal of plaintiffs' class-based equal protection claim was proper because plaintiffs alleged contradictory facts as to defendants' motivation that were insufficient to show that intentional discrimination was a motivating factor for [the] defendants' actions.”). In fact, Clark's complaint is devoid of any facts suggesting that the MPD's officers targeted him because of his race or national origin. Accordingly, Clark fails plausibly to allege a class-based equal protection claim. See Shooter, 4 F.4th at 960-61 (“[The complaint] fails to plead sufficient facts to raise a plausible inference that [the defendants] acted with a ‘discriminatory intent' based on Shooter's sex.... Because the complaint's allegations do not raise a plausible inference of sex discrimination, Shooter's equal protection claim based on such a theory was properly dismissed.”); Mora-Contreras v. Peters, No. 6:18-cv-00678-SB, 2020 WL 2089479, at *5 (D. Or. Apr. 30, 2020) (“Plaintiffs have not pled any facts to support Mora-Contreras' belief that Yancey targeted him because of his race, and therefore they have failed to state a plausible equal protection claim.”).
c. Conclusion
For these reasons, the Court recommends that the district judge dismiss Clark's equal protection claims.
C. Fourteenth Amendment-Due Process Claims
1. Applicable Law
“To establish a substantive due process claim, a plaintiff must, as a threshold matter, show a government deprivation of life, liberty, or property.” Heidt v. City of McMinnville, No. 15-989-SI, 2015 WL 9484484, at *7 (D. Or. Dec. 29, 2015) (quoting Nunez v. City of L.A., 147 F.3d 867, 971 (9th Cir. 1998)). Similarly, “[t]o establish a violation of procedural due process[,] a plaintiff must [first] demonstrate . . . a deprivation of a constitutionally protected liberty or property interest[.]” Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1061 (9th Cir. 2006) (citing Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998)).
2. Analysis
Clark alleges that Defendants violated his constitutional rights by (1) “reject[ing] [his] crime report” and “obstruct[ing] . . . evidence,” even though he “obtained evidence that proves beyond any doubt that specific staff members at NHC-Milwaukie are guilty of assault and . . . various other serious felonious crimes,” (2) leaving him exposed to “somebody [who] will try to hurt [him],” and (3) “fabricat[ing] the circumstances of [the] investigation,” i.e., Simac allegedly misrepresented that a clerk was a doctor and forensic expert. (Compl. at 4-7.)
Even liberally construing Clark's allegations, Clark fails to allege the deprivation of a constitutionally protected interest, and therefore fails to state procedural or substantive due process claims. Clark does not have a constitutionally protected right to have the police investigate his report in a particular way, to police protection, or to have the police arrest an alleged assailant. See Dunlap v. City of Sandy, 846 Fed.Appx. 511, 512 (9th Cir. 2021) (“The right to have a third party arrested by virtue of a mandatory-arrest statute does not resemble any traditional conception of property. Additionally, the alleged property interest in having someone arrested is an indirect benefit arising incidentally out of a function that police have always performed, which undermines the plausibility of Dunlap's claim.”) (simplified); Gini v. Las Vegas Metro. Police Dep't, 40 F.3d 1041, 1045 (9th Cir. 1994) (“[The plaintiff] alleges that the police hindered the investigation of her theft complaint, not her reporting of the theft. The police have no affirmative obligation to investigate a crime in a particular way or to protect one citizen from another even when one citizen deprives the other of liberty or property.”); Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (“The appellants claim that the right infringed was a due process right to have a full and fair police investigation into violence done against themselves or their children. However, we can find no instance where the courts have recognized inadequate investigation as sufficient to state a civil rights claim unless there was another recognized constitutional right involved.”); Powers v. Layton, No. 21-cv-06382, 2022 WL 3579887, at *2 (N.D. Cal. Aug. 19, 2022) (“[T]here is no constitutional right to an accurate or favorable accident report.”); Dunlap v. City of Sandy, No. 3:17-cv-01749-YY, 2019 WL 5075855, at *8 n.3 (D. Or. June 7, 2019) (“There is . . . no constitutional right to individual police protection[.]”), findings and recommendation adopted, 2019 WL 5073559, at *1 (D. Or. Oct. 9, 2019), rev'd on other grounds by Dunlap, 846 Fed.Appx. at 512; Fisher v. Smith, No. 07-cv-08109, 2008 WL 11409586, at *4-5 (C.D. Cal. Mar. 24, 2008) (stating that the “plaintiff's allegations regarding the individual officers' failure to investigate cannot support a § 1983 claim,” the plaintiff had “not alleged that he was harmed in any way by the purportedly false report,” the “harm about which [the plaintiff] complain[ed] [was] the physical injury he suffered as a result of the alleged assault [but] the subsequent investigation did not cause this injury,” and “courts have generally held that the filing of a false police report alone is insufficient to support a constitutional claim under § 1983”).
Clark requests that the Court “order [MPD] (or another more suitable/capable authority) to open a criminal investigation into [his] report of assault or battery and the obstruction of evidence.” (Compl. at 7.) The Court lacks the authority to grant Clark's request. See Ryan v. Lopez, No. 6:12-cv-01467, 2014 WL 2201076, at *3 (D. Or. May 23, 2014) (“[I]t is well settled that private citizens lack a judicially cognizable interest in the prosecution or non-prosecution of another.... As such, plaintiff cannot ask this court to ‘refer' the matter to the United States Attorney for investigation.”); Taylor v. Cal. Dep't of Justice, No. 08-cv-04776, 2009 WL 1814421, at *1 (N.D. Cal. June 23, 2009) (noting that the court lacked the authority to compel the California Department of Justice and local police department to provide the petitioner evidence from an investigation, and that “[f]ederal courts are without power to issue mandamus to direct state courts, state judicial officers, or other state officials in the performance of their duties”).
For these reasons, the Court recommends that the district judge dismiss Clark's due process claims.
III. LEAVE TO AMEND
For the first time in their reply brief, Defendants argue that the Court should dismiss Clark's complaint with prejudice because amendment would be futile. (Defs.' Reply Pl.'s Obj. at 5-6, ECF No. 18; cf. Defs.' Mot. Dismiss at 1-7, failing to argue that the Court should dismiss with prejudice). Typically, a party waives an argument by raising it for the first time in a reply brief. See David v. Kaulukukui, 38 F.4th 792, 801 n.4 (9th Cir. 2022) (noting that “[a]rguments raised for the first time in a reply brief are waived,” and the defendant “did not challenge the district court's conclusion on [a certain] point until her reply brief” and thus “likely waived” the argument (quoting Turtle Island Restoration Network v. U.S. Dep't of Commerce, 672 F.3d 1160, 1166 n.8 (9th Cir. 2012))).
Even if Defendants had not waived the argument, courts typically give plaintiffs one opportunity to amend a complaint unless it is “absolutely clear” that the plaintiff could not cure the complaint's deficiencies. See Palmer v. Arizona, No. 21-15020, 2022 WL 2304234, at *1 (9th Cir. June 27, 2022) (“Unless it is absolutely clear that no amendment can cure the defect[,] . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” (quoting Lucas, 66 F.3d at 248)); Matza v. Countrywide Home Loans, Inc., 433 Fed.Appx. 591, 592 (9th Cir. 2011) (holding that “the district court abused its discretion by dismissing the complaint without granting leave to amend,” and noting that the Ninth Circuit was unable to conclude that the allegation of other facts could not possibly cure the complaint, the “rule favoring liberality in amendments to pleadings is particularly important for [a] pro se litigant,” and “the district court should give [the pro se litigant] an opportunity to amend the complaint, . . . including an opportunity to ‘state an alternative theory for recovery'” (quoting Foman v. Davis, 371 U.S. 178, 182 (1962))). While it is unlikely that Clark can cure his complaint's deficiencies, it is not absolutely clear, and therefore the district judge should grant him leave to amend his complaint.
CONCLUSION
For the foregoing reasons, the Court recommends that the district judge GRANT Defendants' motion to dismiss (ECF No. 12), and provide Clark thirty days' leave to amend his complaint.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.