Opinion
3:22-cv-00222-HZ
08-25-2022
CHRISTIAN DANIEL FITZHENRY, Plaintiff, v. PORTLAND POLICE BUREAU, and UNKNOWN MEMBERS OF PORTLAND POLICE BUREAU, Defendants.
OPINION & ORDER
Marco A. Hernandez United States District Judge
Pro se Plaintiff Christian Daniel Fitzhenry brings this action against the Portland Police Bureau (“PPB”) and “Unknown Members” of the PPB asserting a claim for excessive force. Before the Court is Defendant PPB's Motion to Dismiss (ECF 9). For the reasons that follow, the Court grants the motion.
BACKGROUND
The following facts are taken from Plaintiff's Complaint. See Compl., ECF 1. On November 23, 2021, Plaintiff was arrested by PPB officers. Compl. 3, ECF 1. Arresting officers told Plaintiff to lie on his stomach, and he did so. Id. Officers also “forced” Plaintiff “to crawl on all fours like a dog for multiple feet in the rain.” Id. Once Plaintiff got behind a car, the officers told him to “stop resisting” despite the fact that he was not resisting and told them so. Id. One officer then kneed Plaintiff's left side and another officer kneed his neck. Id. The blows to Plaintiff's side caused two broken ribs and caused plaintiff to urinate from the force of the blows and the weight on his body. Id. Regarding this incident, PPB Internal Affairs Division gave Plaintiff case # 2021-c-0177 and assigned Officer Mike Smith to the case. Id. at 4. In early February 2022, after almost 60 days had passed, Plaintiff had not heard from Officer Smith. Id.
Plaintiff says he was “assaulted/humiliated” by the officers who arrested him and was “never mirandized”, and states, “I want it to be known upon learning the officer(s) names [that] individual claims are forthcoming.” Id. at 5.
STANDARDS
I. Rule 12(b)(1)
A motion to dismiss brought pursuant to Rule 12(b)(1) addresses the court's subject matter jurisdiction. The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over his claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007) (court treats motion attacking substance of complaint's jurisdictional allegations as a Rule 12(b)(1) motion); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (“[U]nlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency[.]”) (internal quotation omitted). Additionally, the court may consider evidence outside the pleadings to resolve factual disputes. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009).
A challenge to standing is appropriately raised under Rule 12(b)(1). Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (“lack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)”); Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010) (“Because standing and ripeness pertain to federal courts' subject matter jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss.”).
II. Rule 12(b)(2)
In a motion to dismiss for lack of personal jurisdiction brought under Rule 12(b)(2) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of proving that the court's exercise of jurisdiction is proper. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). When resolving such a motion on written materials, rather than after an evidentiary hearing, the court need “only inquire into whether the plaintiff's pleadings and affidavits make a prima facie showing of personal jurisdiction.” Id. (quotation marks omitted) (quoting Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995)). Although a plaintiff may not rest solely on the bare allegations of its complaint, uncontroverted allegations must be taken as true. Id. In addition, conflicts between the parties over statements in affidavits must be resolved in the plaintiff's favor. Id.
III. Pro Se Pleadings
Courts must liberally construe Pro se pleadings. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Additionally, a court cannot dismiss a Pro se complaint without first explaining to the plaintiff the deficiencies of the complaint and providing an opportunity to amend. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Dismissal of a Pro se complaint without leave to amend is proper only if it is clear that the deficiencies of the complaint could not be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
DISCUSSION
Defendant PPB asserts two arguments in its motion to dismiss: (1) the Court should dismiss Plaintiff's claim for prospective injunctive relief pursuant to Rule 12(b)(1) because Plaintiff lacks standing; and (2) the Court should dismiss Plaintiff's claims against Defendant PPB pursuant to Rule 12(b)(2) because it is not a separate entity from the City of Portland and is not proper party. Plaintiff did not file a response to Defendant PPB's motion.
I. Plaintiff's Standing to Seek Prospective Injunctive Relief
Federal courts are courts of limited jurisdiction, and as a preliminary matter, a plaintiff must satisfy the “case or controversy” requirement of Article III of the U.S. Constitution to maintain a claim. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983); Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). If the Court does not have an actual case or controversy before it, it lacks authority to hear the matter in question. Lyons, 461 U.S. at 101. “Standing is a core component of the Article III case or controversy requirement.” Barnum Timber Co. v. EPA, 633 F.3d 894, 897 (9th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
The “irreducible constitutional minimum” of standing consists of three elements: the plaintiff must have (1) suffered an injury in fact; (2) that is fairly traceable to the challenged conduct of the defendant; and (3) that is likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016); Lujan, 504 U.S. at 560. To establish an injury in fact, a plaintiff must show that “he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, 578 U.S. at 339 (internal quotation marks omitted).
A plaintiff “must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). To establish Article III standing to seek prospective injunctive relief, a plaintiff “must demonstrate ‘that he is realistically threatened by a repetition of [the violation].'” Armstrong v. Davis, 275 F.3d 849, 860-61 (9th Cir. 2001) (emphasis in original) (quoting Lyons, 461 U.S. at 109), abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005). The threat of repeated future injury, however, may not be “conjectural or hypothetical.” O'Shea, 414 U.S. at 494. A threat of repetition can be shown “at least two ways.” Id. at 861. “First, a plaintiff may show that the defendant had, at the time of the injury, a written policy, and that the injury ‘stems from' that policy.” Id. “Second, the plaintiff may demonstrate that the harm is part of a ‘pattern of officially sanctioned . . . behavior, violative of the plaintiffs' [federal] rights.'” Id. (alterations in original) (quoting LaDuke v. Nelson, 762 F.2d 1318, 1324 (9th Cir.1985)).
These standards make it clear that Plaintiff lacks standing regarding the prospective injunctive relief he seeks. As Defendant PPB points out, Plaintiff only alleges past injuries and fails to allege that he faces any threat of future harm. To establish standing for future relief in the form of an injunction, Plaintiff needs to assert “allegations of future injury [that are] particularized and concrete.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 109 (1998). However, nothing in the Complaint indicates that Plaintiff faces a threat of repeated injury from Defendant PPB or anyone else because Plaintiff makes no references to future harm or injury whatsoever. Because the Complaint contains no allegation of future harm, there is no basis for Plaintiff's prayer for equitable relief. See Lyons, 461 U.S. at 104 (holding that the plaintiff could not establish the requisite type of injury required for Article III standing to seek prospective injunctive relief simply by pointing to some past injury). The Court therefore dismisses Plaintiff's claim for equitable relief, without prejudice. See id.
II. PPB as Defendant
Defendant PPB argues that it should be dismissed from this case because it is not subject to suit under § 1983. Mot. 4, ECF 9. The Court agrees. As cases in this district have repeatedly held, “[t]he Portland Police Bureau is not a separate entity from the City of Portland and is not amenable to suit. It is merely the vehicle through which the city fulfills its police functions.” Nwerem v. City of Portland/Portland Police Bureau, 2006 WL 3228775, at *2 n.1 (D. Or. Nov. 6, 2006); see also Harris v. City of Portland Police Dep't., 2016 WL 740425, at *1 (D. Or. Feb. 24, 2016) (finding that PPB is not a proper defendant); Lukens v. Portland Police Bureau, 2011 WL 5999376, at *2 (D. Or. 2011) (denying as “futile” the plaintiff's motion to maintain PPB as a defendant). The Court therefore dismisses PPB from this action, with prejudice. See id. (“the PPB is dismissed from this suit, with prejudice”).
III. Opportunity to Amend Complaint
The dismissal of Defendant PPB from this action leaves the “Unknown Members” of PPB as the only remaining defendants. “The use of Doe defendants is problematic because those persons cannot be served with process until they are identified by their real names.” Parker v. White, No. 318CV05093BHSDWC, 2019 WL 1458361, at *4 (W.D. Wash. Feb. 27, 2019), report and recommendation adopted, 2019 WL 1453854 (W.D. Wash. Apr. 2, 2019). Additionally, pursuant to Federal Rule of Civil Procedure 4(m), all parties, including ‘Doe' defendants, must be served within 90 days of the filing of an action. See Pruitt v. Oregon Dep't of Corr, 2017 WL 1043300, at *5 (D. Or. March 1, 2017) report and recommendation adopted 2017 WL 1043284 (applying the 90-day service period to John Doe Defendants).
Here, more than 90 days have elapsed since Plaintiff filed the complaint on February 10, 2022, and Plaintiff has not served the “Unknown Member(s)” of PPB. “This Court does not have jurisdiction over a defendant unless it has been properly served pursuant to Rule 4.” Pruitt, 2017 WL 1043300, at *5 (citing Ferguson v. Mgmt. Training Corp., 3:16-cv-00706-BR, 2017 WL 107969, at *1 (D. Or. Jan. 10, 2017) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)). However, Rule 4(m) allows the court to extend time for service and provides in relevant part:
If a defendant is not served within 90 days after the complaint is filed, the court- on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.FED. R. CIV. P. 4(m). Thus, where the plaintiff can show “good cause” for failing to serve defendants within 90 days, district courts “have broad discretion to extend time for service under Rule 4(m).” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). Absent a showing of good cause, “the Court also has the discretion under Rule 4(m) to either order that service be made within a specified time or to dismiss the action without prejudice.” Rodriguez v. Pfeiffer, No. 121CV00572JLTEPGPC, 2022 WL 686454, at *1 (E.D. Cal. Mar. 8, 2022) (citation omitted).
Here, it is appropriate to extend the time for service under Rule 4(m) to allow Plaintiff sufficient time to discover the identities of the Unknown Members of PPB. In the Ninth Circuit, “‘where the identity of the alleged defendant is not known prior to the filing of a complaint, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.'” Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), and cautioning against dismissing a “complaint against Doe simply because [the plaintiff] was not aware of Doe's identity at the time he filed his complaint”). Because a district court may order early discovery in a case, see FED. R. CIV. P. 26(d), and a non-party may be served with a subpoena, see Fed.R.Civ.P. 45, a plaintiff can possibly discover the identity of an unknown defendant through early discovery. See Cottrell v. Unknown Correctional Officers, 1-10, 230 F.3d 1366, 1366 (9th Cir. 2000) (“The district court erred when it concluded that discovery would not uncover the identities of the defendants because there were no named defendants to serve in this case. [Rule] 26(d) allows the district court to order discovery early in the case and Rule 45 allows service of a subpoena on a non-party.”); see also, Voltage Pictures, LLC v. Doe-50.141.97.4, No. 3:14-CV-1872-AC, 2015 WL 1579533, at *4 (D. Or. Apr. 9, 2015) (granting the plaintiffs expedited discovery “to determine the identity of the infringer” and noting, “the court finds it likely that the requested discovery will uncover the identity of the defendant in this case”).
Therefore, should Plaintiff decide to proceed with this action, the Court grants him leave to engage in early discovery for the limited purpose of discovering the identity of the “Unknown Members” of PPB referenced in his Complaint so that service may be effected. See Quintero v. Doe, No. 208-CV-00571JMSBMKPC, 2009 WL 5218050, at *1 (E.D. Cal. Dec. 29, 2009) (granting early discovery to the plaintiff for the “limited purpose” of discovering the identity of the Doe defendant). Plaintiff may, for example, choose to send an interrogatory to the counsel of record for Defendant PPB and request the identity of the officers who were involved with his arrest on November 23, 2021. See id. Plaintiff is granted sixty (60) days from the date of this order to conduct such discovery and to file an Amended Complaint stating the identities of “Unknown Members” of PPB. See id.; see also, Hunter v. Sandoval, No. 217CV09257CJCSHK, 2018 WL 6074562, at *4 (C.D. Cal. Aug. 31, 2018) (allowing the plaintiff “to request leave to conduct limited discovery to discover the names and identities of Doe Defendants”). Should Plaintiff choose to file an Amended Complaint within sixty (60) days, the Complaint should include specific factual allegations regarding the actions taken by each individual defendant that deprived Plaintiff of his civil or constitutional rights.
CONCLUSION
The Court GRANTS Defendant PPB's motion to dismiss Plaintiff's claim for prospective injunctive relief, without prejudice (ECF 9). The Court GRANTS Defendant PPB's motion to dismiss it from this suit, with prejudice (ECF 9). The Court extends the period for service and allows Plaintiff to engage in limited discovery and file an Amended Complaint within sixty days of this order.
IT IS SO ORDERED.