Opinion
Civ. No. 1:20-cv-01021-CL
01-28-2021
MATTHEW PUSATERI, Plaintiff, v. DENNIS GIBBS; EARL PERRY; KLAMATH COUNTY, OREGON; UNNAMED KLAMATH COUNTY SHERIFF'S DEPUTIES, Defendants.
FINDINGS & RECOMMENDATION
This matter comes before the Court on a Motion to Dismiss filed by Defendants Klamath County and Earl Perry. ECF No. 14. Plaintiff has not responded to Defendants' Motion and the time for doing so has now passed. This motion is appropriate for resolution without oral argument. Defendants' Motion to Dismiss should be GRANTED.
LEGAL STANDARD
To survive a motion to dismiss under the federal pleading standards, the complaint must include a short and plain statement of the claim and "contain sufficient factual matter, accepted as true, to 'state a claim for 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)). "A claim has 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. The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully." Id. The court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id.
BACKGROUND
I. Factual Background
Plaintiff Matthew Pusateri is a disabled person residing in Klamath County, Oregon. Compl. ¶¶ 5, 8. Defendant Earl Perry is a code enforcement officer working for Defendant Klamath County. Id. at ¶ 6. The Complaint generally alleges that Plaintiff is has a long-running conflict with the Klamath Falls Forest Estates Home Owners' Association and further alleges that County officials have conspired with the Home Owners' Association to discriminate against Plaintiff based on his disabilities.
As relevant to the present motion, the Complaint alleges that Perry cited Plaintiff for illegal camping in November 2017. Compl. ¶ 14. Although Plaintiff alleges that he had the appropriate permits, the County prevailed at a hearing on November 21, 2017 and Plaintiff was convicted. Id. The Complaint alleges that no such enforcement actions were taken against other members of the Home Owners' Association, despite Plaintiff having filed formal complaints against those individuals. Id. at ¶ 16.
II. Procedural Background
Plaintiff has previously sued the moving Defendants based on many of the same allegations. In January 2018, Plaintiff brought a pro se action against Perry in Pusateri et al. v. Klamath Cnty. Cmty. Dev. et al., Case No. 1:18-cv-0058-MC. In that case, Plaintiff sued Perry for malicious prosecution and violation of his equal protection rights based on county code enforcement actions. The complaint was dismissed on January 18, 2018 for failure to state a claim and Plaintiff was given thirty days to file an amended complaint. Plaintiff failed to file an amended complaint within the allotted time and a judgment of dismissal was entered on February 23, 2018.
Also in January 2018, Plaintiff brought a separate pro se action against the Klamath County Board of County Commissioners, Pusateri et al. v. Klamath Cnty. BOCC et al., Case 1:18-cv-00056-CL. Like the present case, that action generally appeared to allege collusion between the County and the Home Owners' Association and alleged a violation of Plaintiff's equal protection rights. The case was dismissed for defects of standing, timeliness, tort claim notice, and failure to state a claim. Plaintiff was given thirty days to file an amended complaint, but no amended complaint was filed. A judgment of dismissal was entered on March 2, 2018.
Plaintiff, together with two other parties, brought a third action in November 2019, Ricard et al. v. Hill et al., Case No. 1:19-cv-01881-CL. As with the present case, Plaintiff alleged a collusion between the County and the Home Owners' Association and a code enforcement action by Perry in November 2017. On April 3, 2020, the Court granted a motion to sever in that case and Plaintiff's claims were dismissed with leave to file a separate action. Plaintiff filed the present case on June 25, 2020.
The Court does not address Plaintiff's previous actions against the non-moving Defendants here.
DISCUSSION
Plaintiff brings claims for (1) disability discrimination in violation of 42 U.S.C. § 12132; and (2) conspiracy to violate his civil rights under 42 U.S.C. §§ 1985 and 1986. Defendants move to dismiss on the grounds that they have not been timely served as required by Rule 4(m), which provides:
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).
A court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Rule 4. Crowley v. Bannister, 734 F.3d 967, 974-75 (9th Cir. 2013). Rule 4 "is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint," but "neither actual notice, nor simply naming the person in the caption of the complaint will subject defendants to personal jurisdiction if service was not made in substantial compliance with Rule 4." Id. at 975 (internal quotation marks and citations omitted, alterations normalized).
The Complaint in this case was filed on June 25, 2020. ECF No. 1. Although Summons have been issued, ECF No. 13, no returns of service have been entered and Defendants assert that they have not been served with the Summons or the Complaint. Def. Mot. at 6. Plaintiff has not responded to Defendants' Motion, either to demonstrate service or to show good cause for the failure to timely serve. Defendants' Motion to Dismiss should therefore be GRANTED based on Plaintiff's failure to serve Defendants with the Summons and Complaint as required by Rule 4.
Although Defendants also move to dismiss the Complaint on other grounds, Plaintiff's failure to serve the Defendants, and the attendant lack of personal jurisdiction over those Defendants, is sufficient to justify dismissal and the Court need not reach the other issues raised by Defendants.
CONCLUSION
Defendant's Motion to Dismiss, ECF No. 14, should be GRANTED and the Complaint should be DISMISSED without prejudice for failure to serve Defendants as required by Rule 4(m).
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
It is so ORDERED and DATED this 28 day of January 2021.
/s/_________
Mark Clarke
United States Magistrate Judge