Opinion
3:21-cv-01588-SB
06-15-2022
JACQUES GUINN GRANT, Plaintiff, v. STATE OF OREGON et al., Defendants.
FINDINGS AND RECOMMENDATION
STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on self-represented plaintiff Jacques Guinn Grant's (“Grant”) “response to cause,” filed on May 27, 2022. (ECF No. 13 at 1) (all caps omitted). The Court previously dismissed Grant's complaint with leave to amend and extended the amended pleading deadline to June 2, 2022, and therefore the Court construes Grant's “response to cause” as his amended pleading filed in response to the Court's dismissal order. For the reasons explained below, the Court recommends that the district judge dismiss Grant's amended pleading with leave to file a second amended complaint on the attached form and in accordance with the Court's instructions herein.
Courts have construed a self-represented litigant's post-dismissal filing in a similar manner. See, e.g., Liqiang Wei v. Dep't of Physics at Stanford Univ., No. 18-00228, 2018 WL 2215597, at *1-3 (N.D. Cal. Mar. 19, 2018) (construing the self-represented litigant's “amended letter complaint” as “a pleading filed in response to the [court's] dismissal order,” and screening the pleading).
BACKGROUND
Grant, a self-represented litigant, filed his original complaint and application to proceed in forma pauperis (“IFP”) on November 1 and November 2, 2021, respectively. (ECF Nos. 1-2.) Grant alleged that while he was walking home on November 6, 2019, he was unlawfully arrested and subject to excessive force by unnamed police officers, in violation of his rights under the Second and Fourth Amendments. (ECF No. 2 at 4.) Grant's complaint, IFP application, and civil cover sheet named the “State of Oregon” and “Multnoma[h] (Portland Police)” as defendants, and the complaint's caption also referred to “City of Portland (Police Officers).” (Id. at 1-2; see also ECF Nos. 1 at 1, 2-1 at 1.)
On January 4, 2022, the Court granted Grant's IFP application but ordered him to show cause in writing by January 25, 2022, why the Court should not dismiss the complaint against the named defendants, or, alternatively, to file an amended complaint on or before January 25, 2022, curing the identified deficiencies. (ECF No. 7.) Grant timely filed a response to the Court's order to show cause, but failed adequately to address his complaint's deficiencies. (See ECF No. 8.) As a result, on February 3, 2022, the Court dismissed Grant's complaint with leave to amend. (ECF No. 9.)
In its February 3, 2022 dismissal order, the Court concluded that Grant's complaint was deficient in several respects. The Court explained that the Eleventh Amendment barred Grant's claim against the State of Oregon, and Grant failed plausibly to allege a Monell claim against the City of Portland or Multnomah County or a Second Amendment claim. (Id. at 2-3.) The Court also explained that although Grant may pursue excessive force and false arrest claims under the Fourth Amendment and sue state or local officials in their individual capacities under 42 U.S.C. § 1983 for violating his constitutional rights, Grant failed to identify the individuals involved in the alleged violation of his constitutional rights and thus failed to state a plausible § 1983 claim. (Id. at 3-5.) Given these deficiencies, the Court dismissed Grant's complaint with thirty days' leave to amend.
On May 27, 2022, after the Court granted Grant's request to extend his amended pleading deadline to June 2, 2022, Grant filed the amended pleading (ECF No. 13) that is now before the Court.
PRELIMINARY PROCEDURAL MATTERS
Grant's pleadings raise concerns related to the Supreme Court's decisions in Younger v. Harris, 401 U.S. 37 (1971) and Heck v. Humphrey, 512 U.S. 477 (1994). (See ECF No. 13 at 3, asking the Court to “stay this case” pursuant to the Younger abstention doctrine and referring to a state appellate decision regarding the seizure and need to return Grant's weapon; ECF No. 2 at 4, referencing the criminal case number “17CR67356” and Grant's November 2019 arrest).
“In Younger, the Supreme Court held that federal courts should abstain from staying or enjoining pending state criminal prosecutions absent extraordinary circumstances.” Bean v. Matteucci, 986 F.3d 1128, 1133 (9th Cir. 2021) (citing Younger, 401 U.S. at 45). In Heck, the Supreme Court “held that a § 1983 damages claim is not cognizable when success on the action would imply the invalidity of a conviction or sentence that has not been reversed or otherwise invalidated.” Ray v. Lara, 31 F.4th 692, 697 (9th Cir. 2022) (citing Heck, 512 U.S. at 486-87); see also Langley v. Tulare Police Dep't, No. 1:16-cv-0336, 2017 WL 4151246, at *3 (E.D. Cal. Sept. 19, 2017) (“A claim for use of excessive force during the course of an arrest may not necessarily imply the invalidity of the arrest or conviction and therefore may not be barred by Heck.”).
Courts have taken judicial notice of a plaintiff's criminal proceedings when, as here, a federal civil suit raises concerns related to Younger and Heck. See Rivera v. Gore, No. 17-02225, 2018 WL 1001252, at *3 n.3 (S.D. Cal. Feb. 21, 2018) (taking judicial notice of the plaintiff's ongoing criminal proceedings before addressing the Younger abstention doctrine); Busby v. Cody, No. 19-1422, 2020 WL 3883645, at *2 n.2 (D. Nev. July 9, 2020) (taking judicial notice of the documents filed in the plaintiff's criminal case before addressing whether the plaintiff's civil case fell “outside Heck's bar,” and noting that “a court may take judicial notice of federal and state court records” (citing Harris v. Cnty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012))); see also FED. R. EVID. 201(c)(1) (reflecting that “[t]he court . . . may take judicial notice on its own”).
Consistent with these authorities, the Court takes judicial notice of the dockets and filings in (1) Oregon v. Grant, No. 17CR67356 (Multnomah Cnty. Cir. Ct. filed October 10, 2017); (2) City of Portland v. Grant, No. A167258 (Or. Ct. App. filed Mar. 16, 2018); and (3) Oregon v. Grant, No. 19CR73176 (Multnomah Cnty. Cir. Ct. filed Nov. 7, 2019). The Court also takes judicial notice of City of Portland v. Grant, 456 P.3d 689 (Or. Ct. App. 2020), which cited State v. Smith, 373 P.3d 1089 (Or. Ct. App. 2016) (mem.) in reversing one of Grant's criminal convictions (No. 17CR67356). See Takieh v. Banner Health, No. 21-15326, 2022 WL 474170, at *1 (9th Cir. Feb. 16, 2022) (holding that a court did not abuse its discretion in taking judicial notice of a state court decision).
In Smith, the Oregon Court of Appeals reviewed the trial court's denial of a motion to suppress evidence used to secure a conviction, and held that “the trial court erred in determining that the search was justified by the officer's reasonable suspicion[.]” 373 P.3d at 1090.
These judicially noticeable matters demonstrate that Grant's 2017 criminal case involved misdemeanor offenses for unlawful possession of a firearm and possession of a loaded firearm in a public place, and resulted in a judgment of dismissal on March 15, 2021, nearly one year after the Oregon Court of Appeals reversed and remanded the case based on Smith. These matters also demonstrate that Grant's 2019 criminal case involved misdemeanor offenses for disorderly conduct in the second degree and harassment, resulted in no complaint, and was closed on November 7, 2019.
Given this history, Heck does apply to this case, which Grant originally filed on November 1, 2021, because success would not “imply the invalidity of a conviction or sentence that has not been reversed or otherwise invalidated.” Ray, 31 F.4th at 697. Younger also does not apply given the absence of any pending criminal proceedings, and therefore the Court denies Grant's request to stay this case. See Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (“Absent any pending proceeding in state tribunals, therefore, application by the lower courts of Younger abstention was clearly erroneous.”).
DISCUSSION
Grant's amended pleading attempts to cure some but not all of the previously-identified deficiencies. The Court addresses Grant's claims and the cured and uncured pleading deficiencies below.
I. ELEVENTH AMENDMENT
Grant's amended pleading states that he has “thrown aside [the] sovereignty of The State . . . by correctly invoking . . . [the] eleventh amendment[.]” (ECF No. 13 at 2.) As the Court explained in its initial dismissal order, Grant's claims against the State of Oregon fail because the Eleventh Amendment bars such claims. See Stull v. Maurry, No. 3:13-cv-02211-KI, 2014 WL 183899, at *2 (D. Or. Jan. 14, 2014) (dismissing the self-represented plaintiff's claim against the State of Oregon because it was “barred by the Eleventh Amendment” and stating that “civil rights claims against [a] state under 42 U.S.C. § 1983 are barred by sovereign immunity” (citing Quern v. Jordan, 440 U.S. 332, 345 (1979))). Accordingly, the Court recommends that the district judge dismiss Grant's claims against the State of Oregon with prejudice and without leave to amend. See generally Perez v. Mortg. Elec. Registration Sys., Inc., 959 F.3d 334, 340 (9th Cir. 2020) (“If a complaint does not state a plausible claim for relief, a ‘district court should grant leave to amend . . . unless it determines that the pleading could not possibly be cured by the allegation of other facts.'” (quoting Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000))).
II. NINTH AMENDMENT
Although Grant states that he has “correctly invok[ed]” the Ninth Amendment (ECF No. 13 at 2), Grant has not stated (and cannot state) a Ninth Amendment claim. See Waine v. Warner, No. 12-cv-01613-BR, 2013 WL 4501028, at *6 (D. Or. Aug. 21, 2013) (explaining that the Ninth Amendment “has not been interpreted as independently securing any constitutional rights for purposes of making out a constitutional violation” (quoting Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) and citing Standberg v. City of Helena, 791 F.2d 744, 748-49 (9th Cir. 1986))). Accordingly, the Court recommends that the district judge dismiss Grant's Ninth Amendment claim with prejudice and without leave to amend.
III. CRIMINAL CHARGES
Grant's amended pleading reflects that he “might possibly bring” and “may file criminal charges” against one or more defendants. (ECF No. 13 at 2-3.) To the extent Grant is trying or intends to bring criminal charges against a defendant named in this civil proceeding, the Court reminds Grant that “an individual may not bring criminal charges against another individual [or entity] by filing a civil complaint in [federal court].” Jacob v. Flagg, No. 10-cv-02249, 2011 WL 115011, at *2 (S.D. Cal. Jan. 13, 2011) (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)).
IV. MONELL CLAIM
Grant's amended pleading suggests that he is attempting to bring a Monell claim against the City of Portland (the “City”) based on his allegations that (1) the Portland Police Bureau (“PPB”) has a history or “pattern[] and practice” of using excessive force and falsifying police reports; (2) PPB Officer Jason Jones (“Officer Jones”) and potentially other PPB officers participated in the “beat[ing] and dragg[ing]” of Grant, which fractured Grant's ankle and damaged Grant's eye socket; and (3) Officer Jones submitted a false police report. (See ECF No. 13 at 2-3, focusing on these allegations and the Department of Justice's (“DOJ”) prior investigation into the “same type of malfeasance” and “patterns and practice”).
The Court reminds Grant that PPB is not amenable to suit because it is “merely the vehicle through which the city fulfills its police functions” and “not a separate entity from the City[.]” Shore v. City of Portland, No. 17-1519-YY, 2018 WL 3469037, at *2 (D. Or. May 21, 2018) (simplified).
To state a Section 1983 claim against a local government entity under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), a plaintiff must allege facts showing that “(1) [the plaintiff] was deprived of a constitutional right; (2) the municipality had a policy; (3) the policy amounted to deliberate indifference to [the plaintiff's] constitutional right; and (4) the policy was the moving force behind the constitutional violation.” J.K.J. v. City of San Diego, 17 F.4th 1247, 1255 (9th Cir. 2021) (quoting Lockett v. Cnty. of L.A., 977 F.3d 737, 741 (9th Cir. 2020)). A plaintiff may establish Monell liability by showing that “the alleged constitutional violation was caused by a failure adequately to train municipal employees.” Martin v. City of Portland, No. 19-1647-SI, 2020 WL 363391, at *4 n.3 (D. Or. Jan. 21, 2020) (citing City of Canton v. Harris, 489 U.S. 378, 388-91 (1989) and Garman v. Cnty. of L.A., 828 F.3d 837, 846 (9th Cir. 2016)).
The district court's decision in Martin is instructive here. In that case, the plaintiff “satisfied the requirements of Rule 12(b)(6) by asserting plausible factual allegations that, if proven, would establish each of the elements of his Monell claim.” 2020 WL 363391, at *6.Specifically, the plaintiff (the personal representative of a deceased's estate) alleged that the City had a history of using unconstitutional force on people experiencing mental health crises and had not implemented adequate disciplinary policies to reduce or eliminate the occurrence of such events, and that the PPB responded to the unarmed deceased's erratic behavior by shooting and killing him:
Before making its determination as to the plausibility of the plaintiff's Monell claim, the district court “took judicial notice of the DOJ's 2019 Findings of Substantial Compliance, filed in connection with the Court's oversight of the Settlement Agreement entered in the case of United States of America v. City of Portland, Case No. 3:12-cv-02265-SI (D. Or.)[.]” Id. at *3 n.2.
Plaintiff alleges that the City has a history of using unconstitutional force on people experiencing mental health crises sufficient to constitute a custom or practice and that the City has not implemented adequate disciplinary policies to reduce or eliminate the occurrence of unconstitutional uses of force against such persons. Plaintiff also alleges that police responded to Mr. Martin's erratic behavior by shooting him with a ‘less lethal shotgun round,' chasing him down the street, shouting at him, and ultimately shooting and killing him when he was unarmed. Accepting these factual allegations as true and drawing all reasonable inferences in favor of Plaintiff, as the Court must do at this stage of the lawsuit, the Court concludes that Plaintiff has adequately alleged that the City has the requisite custom or practice, that the City acted with deliberate indifference, and that the City's custom or practice and actions and omissions caused the death of Mr. Martin. The Court denies the City's motion to dismiss.Id.; see also Id. at *5 n.3 (noting that the plaintiff “only expressly allege[d] Monell liability based on a theory of ‘custom and practice,'” but “also explicitly alleged the City's ‘deficiencies in policy, training, and supervision'”).
Unlike the allegations in Martin, Grant's amended pleading does not include any allegation regarding any deficiencies in the City's policies, training, or supervision. Nor does Grant address whether this case also concerns the PPB's response to a person with mental health needs (perceived or otherwise), or include a prayer for relief addressing any requested relief or damages. Although he has not sufficiently stated a Monell claim in his amended pleading, Grant may possess a good faith basis for alleging facts necessary to assert a Monell claim similar to the plausible claim the plaintiff alleged against the City in Martin. The Court therefore recommends that the district judge allow Grant to amend his Monell claim against the City.
V. SECOND AMENDMENT
Grant's amended pleading states that he “might possibly bring a second amendment claim,” because the Oregon Court of Appeals “ordered that [his previously seized] weapon be returned some twelve months ago” and Grant is still waiting to receive it. (ECF No. 13 at 2-3.) The Court declines to address a hypothetical Second Amendment claim. See Glover v. Cal. State Univ. Fresno, No. 15-152, 2015 WL 5734418, at *4 (E.D. Cal. Sept. 28, 2015) (explaining that the court “does not issue advisory opinions” and thus “normally would not rule on whether a hypothetical claim raised in a future pleading would be cognizable”).
The Court does, however, remind Grant there are state statutory mechanisms available for seeking the return of property. See Tarabochi v. City of Seaside, No. 3:16-cv-01603-TC, 2018 WL 3097558, at *4 (D. Or. Mar. 19, 2018) (addressing the plaintiff's conversion claim against the city for “refusing to return property illegally seized from him,” and explaining that Oregon law requires “a plaintiff [to] provide a governmental entity with notice of a tort claim within 180 days of the alleged loss or injury,” and OR. REV. STAT. § 133.633 is a state “statutory mechanism for the return of property” that the plaintiff “should utilize . . . with the state court . . . familiar with . . . the actual property”).
VI. OFFICER JONES
Grant's amended pleading suggests that he is bringing Section 1983 claims against Officer Jones, in his individual capacity, based on his alleged use of excessive force, unlawful search, and false arrest and report, all of which allegedly violated Grant's constitutional rights under the Fourth Amendment. (See also Dismissal Order at 3-4, making many of the same observations about Grant's claims).
Grant alleges that he suffered a fractured ankle and damaged eye socket during the course of Officer Jones's arrest of Grant. (See ECF No. 13 at 2-3.) Grant appears to allege that Officer Jones's actions were not objectively reasonable in light of the facts and circumstances confronting him. See Reyes v. Marino, 837 Fed.Appx. 543, 544 (9th Cir. 2021) (explaining that “when analyzing a Fourth Amendment excessive force claim, the ‘initial inquiry is whether the officers' actions [were] objectively reasonable in light of the facts and circumstances confronting them'” (quoting Tatum v. City & Cnty. of S.F., 441 F.3d 1090, 1095 (9th Cir. 2006))). However, it is not clear if Grant is seeking any damages or other form of relief. Grant must amend his excessive force claim to include the relief he seeks.
With respect to a false arrest claim, Grant must plausibly allege, among other things, that Officer Jones lacked probable cause to believe that Grant committed any of the alleged offenses. See Oster v. Cnty. of Solano, 599 Fed.Appx. 637, 638 n.1 (9th Cir. 2015) (addressing a false arrest claim and explaining that a plaintiff “must plausibly allege that [the] [d]efendant[] lacked probable cause to believe [the plaintiff] had committed [the alleged offense]”). Notably, “[a] police officer has probable cause to arrest a suspect without a warrant if the available facts suggest a fair probability that the suspect has committed a crime.” Bonneau v. City of Portland, No. 18-518-SI, 2022 WL 523444, at *4 (D. Or. Feb. 22, 2022) (quoting Tatum, 441 F.3d at 1094).
With respect to an unlawful search claim, Grant must plausibly allege, among other things, that Officer Jones lacked probable cause, exigent circumstances, or consent to justify a warrantless search. See Lemus v. Cnty. of Merced, 711 Fed.Appx. 859, 861 (9th Cir. 2017) (“The facts alleged also plausibly show [the defendant] lacked probable cause and exigent circumstances to justify a warrantless search.”). Notably, “[a]n individual may waive his Fourth Amendment rights by giving voluntary and intelligent consent to a warrantless search of his person, property, or premises.” Bonneau, 2022 WL 523444, at *4 (quoting United States v. Torres-Sanchez, 83 F.3d 1123, 1129 (9th Cir. 1996)).
Courts have found allegations about “a lack of probable cause” to be conclusory when the plaintiff's complaint “lack[ed] adequate facts about the circumstances of [his] arrest,” such as allegations about “exactly where he was arrested, what he was arrested for, what the officers ordered him to do, whether he remains subject to prosecution, or any other relevant details.” Durham v. City of Long Beach, No. 20-11449, 2021 WL 4816640, at *4 (C.D. Cal. July 2, 2021); see also Medrano v. Acosta, No. 18-10108, 2020 WL 5413384, at *5 (C.D. Cal. Mar. 25, 2020) (explaining that the “plaintiff's allegation that probable cause was otherwise lacking [was] conclusory”).
Grant alleges that he was “not at a bar” or “bar fight” and “no[t] at another bar to get in a fight.” (ECF No. 13 at 2.) Grant also makes a conclusory allegation about there being “no probable cause,” but provides only minimal facts about the circumstances of his arrest (i.e., after Grant was at an establishment watching a football game, Grant took “the long route home” because it was “a pleasant night,” Officer Jones stopped Grant when he was on a street or sidewalk, and Officer Jones “asked to search” Grant's bag and Grant “gave [him] the bag”). (See ECF No. 13 at 2-3.) Grant's allegations fail adequately to allege that Officer Jones lacked probable cause to believe that Grant committed any offense at issue, or probable cause, exigent circumstances, or consent to conduct a warrantless search of Grant's bag. If Grant wishes to pursue false arrest or search-related claims, he must include far more detailed allegations about the circumstances of his arrest and the search. Grant must also address whether he is seeking any damages or other form of relief.
CONCLUSION
For the reasons stated, the Court recommends that the district judge dismiss Grant's amended pleading, but allow him fourteen days to file an amended complaint on the attached form and in accordance with the Court's instructions.
The Court reminds Grant that he may attempt to retain counsel to represent him in this case, or he may seek free legal assistance from the Federal Bar Association's free legal clinic. Grant may apply for a free, thirty-minute telephone session with a volunteer attorney at this website: https://oregonfederalbarassociation.org/federal-law-clinic/.
Specifically, if the district judge agrees with the recommendations herein, Grant may not assert claims against PPB or the State of Oregon and may not assert any criminal claims or a Ninth Amendment claim. However, he may amend (i) his excessive force claim against Officer Jones and attempt to state a Monell claim against the City of Portland; and (ii) his false arrest or unlawful search claims against Officer Jones or any other specifically identified PPB officer. If Grant does not timely file a second amended complaint or does not comply with the Court's instructions, the Court recommends that the district judge dismiss this action with prejudice.
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.