Pusateri et al v. Klamath County Sheriffs Office et al
OPINION AND ORDER: The Complaint 1 is DISMISSED with leave to amend. Plaintiffs shall have thirty (30) days from the date of this Order in which to file an amended complaint. Plaintiffs are advised that failure to file an amended complaint w ithin the allotted time will result in the entry of a judgment of dismissal. The Court defers ruling on Plaintiffs' IFP petition pending the filing of the amended complaint. Signed on 1/12/2018 by Judge Ann L. Aiken. A copy of this Opinion and Order was mailed to pro se plaintiffs Matthew Robert Pusateri and Dalton Robert Pusateri. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MATTHEW ROBERT PUSATERI;
DALTON ROBERT PUSATERI,
Civ. No. 1:18-cv-00060-AA
OPINION & ORDER
KLAMATH COUNTY SHERIFFS OFFICE;
RYAN HUNTSMAN; MARK BORGES;
AIKEN, District Judge.
Plaintiffs Matthew Robett Pusateri and Dalton Robett Pusateri seek leave to proceed in
Jonna pauperis (IFP) in this civil rights action against the Klamath County Sheriffs Office
(KCSO) and a number of individual deputy sheriffs employed by KCSO. For the reasons set
forth below, the Pusateris' Complaint, ECF No. 1, is DISMISSED with leave to amend. The
Comt defers ruling on the Pusateris' Application for Leave to Proceed IFP, ECF No. 2, pending
submission of an amended complaint.
The Pusateris' Complaint is disjointed and difficult to read. It largely consists of a
disconnected recitation of incidents and grievances, apparently involving an unnamed home
owner's association (HOA), as well as conflicts between the Pusateris and various private
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individuals and Klamath County employees.
The following summary is derived from the
In the first claim, the Pusateris allege that KCSO Deputy Ryan Huntsman responded to a
report of assault on August 29, 2012. The details of the alleged assault are not included, nor are
details of Deputy Huntsman's investigation, other than that he interviewed both parties. At some
point after this, someone, presumably the Pusateris, discovered that an HOA president named
Mark Thompson was involved in a theft.
On September 12, 2012, someone named Matt
Langsford and his girlfriend Jasmin were held hostage by three armed men, allegedly in
retaliation for the events of August 29, 2012. The Complaint offers no details about any of these
individuals or events, nor does it explain how they are related.
The Pusateri' s second claim appears to involve two separate incidents. The first, which
took place on April 30, 2013, involves an altercation between "KFFE HOA Treasurer Linda
Rossiter" and an unnamed HOA member in which Rossiter is alleged to have been on the
unnamed HOA member's property while armed with a rifle. Rossiter was arrested by KCSO
Deputy Mark Borges, although the Pusateris "don't think she faced charges."
The second incident occurred on July 7-8, 2013. On July 7, 2013, the Pusateris allege
that KCSO received a call from an individual named Bill Beaumont, in which Beaumont
tlu·eatened to kill Matthew Pusateri if KCSO did not respond. In the early hours of July 8, 2013,
KCSO deputies responded to reports of gunshots, apparently fired by Beaumont. There are no
details about this incident, other than that the Pusateris were unsatisfied with the KCSO deputies'
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investigation. The Pusateris allege that two days after the incident, Beaumont "fired three shots
in a tan truck." No other details are alleged.
The Pusateris' third claim alleges that Matthew Pusateri drove to KCSO headquaiiers on
October 10, 2013, to report misconduct and financial irregularities. Who precisely committed
these offenses is unclear, although the Comi infers that it involved the Pusateris' HOA. KCSO
deputies told the Pusateris that it was a civil matter and declined to investigate.
The Pusateris' fourth claim alleges that an individual named Steven Edward Dann (or
Danne) was murdered on May 10, 2014. The Pusateris claim that Dann was murdered with the
same guns, and presumably the saine individuals, who were involved in the July 8, 2013
incident. The Pusateris reported their suspicions to the authorities in Klamath County, who
declined to investigate.
The Pusateris' fifth claim alleges that in January 2016, employees of the "KFFE Special
Road District" blocked Matthew Pusateris' driveway either by failing to plow snow from the
road in front of Matthew Pusateris' house, or by plowing it in such a way that the snow
accumulated in the private driveways. Matthew Pusateri and his roommate complained about the
situation to KCSO deputy Mark Borges, but were told nothing could be done.
The Pusateris' sixth claim contains the allegation: "Rep01i on 10-25-2016 of Earl Perry
of KCCE trespassing and making threats, causing stress, unce1iainty." The Comi infers that
"KCCE" is Klamath County Code Enforcement. No further details are included.
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The claim goes on to allege that on October 26, 2017, Matthew Pusateri went to KCSO
"to report theft, imbezlement [sic], conspiring, colussion [sic], accessories before and after the
fact." The Complaint does not clearly allege who did what, when, and to whom, other than a
cryptic reference to "the chairman." KCSO deputies declined to investigate, telling the Pusateris
that it was a civil matter.
The Pusateris' final claim alleges that someone named Eric Gorgiz rep01ied money
missing from the HOA on November 16, 2017.
KCSO indicated that it would investigate after
the Thanksgiving holiday, but Gorgiz did not produce the documents to suppoti his allegations.
Generally, all parties instituting any civil action in United States District Court must pay
a statutory filing fee.
28 U.S.C. § 1914(a). However, the federal IFP statute, 28 U.S.C. §
1915(a)(l), provides indigent litigants an opportunity for meaningful access to federal comis
despite their inability to pay the costs and fees associated with that access. To authorize a
litigant to proceed IFP, a court must make two determinations. First, a court must determine
whether the litigant is unable to pay the costs of commencing the action. 28 U.S.C. § 1915(a)(l).
Second, it must assess whether the action is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a defendant who is immune to such
relief. 28 U.S.C. § 1915(e)(2)(B).
In regard to the second of these determinations, district comis have the power under 28
U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the complaint on the
defendants, and must dismiss a complaint if it fails to state a claim. Comis apply the same
standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing a motion to dismiss under Federal
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Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 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 At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the comt 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
Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines
v. Kerner, 404 U.S. 519, 520-21 (1972). That is, the comt should construe pleadings by prose
plaintiffs liberally and afford the plaintiffs the benefit of any doubt.
Karim-Panahi v. Los
Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Additionally, a prose litigant is
entitled to notice of the deficiencies in the complaint and the oppmtunity to amend, unless the
complaint's deficiencies cannot be cured by amendment. Id.
The Complaint in this case is disjointed and difficult to read. Construed liberally, it
appears that the Pusateris intend to asse1t 42 U.S.C. § 1983 civil rights claims against KCSO and·
various individual deputies for failure to initiate criminal investigations and/or prosecutions in
response to reports made by Matthew Pusateri. Dalton Pusateri's involvement in these claims is
Title 42 U.S.C. § 1983 "provides a federal cause of action against any person who, acting
under color of state law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286,
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290 (1999). To maintain a claim under § 1983, "a plaintiff must both (1) allege the deprivation
of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation
was committed by a person acting under color of state law." Anderson v. Warner, 451 F.3d
1063, 1067 (9th Cir. 2006).
Even at this early stage of the case, the Court notes several serious issues with the
The most important is standing.
"[S]tanding is an essential and
unchanging part of the case-or-controversy requirement of Atticle III [of the United States
Constitution]." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "Standing addresses
whether the plaintiff is the proper patty to bring the matter to the court for adjudication."
Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). At an
"irreducible constitutional minimum," Atticle III standing "requires the party asse1ting the
existence of federal comt jurisdiction to establish three elements: (1) an injury in fact that is (a)
concrete and particularize and (b) actual or imminent; (2) causation; and (3) a likelihood that a
favorable decision will redress the injury." Wolfton v. Brammer, 616 F.3d 1045, 1056 (9th Cir.
2010) (internal quotation marks and citation omitted).
In addition to these constitutional limitations on federal comt jurisdiction, there are also
prudential limitations on its exercise. Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100,
1103-04 (9th Cir. 2006). The doctrine of prudential standing "restrict[s] the grounds a plaintiff
may put forward in seeking to vindicate his personal stake." Id. at 1104. Coutts must consider,
among other things, "whether the alleged injury is more than a mere generalized grievance,
whether the plaintiff is asse1ting her own rights or the rights of third patties, and whether the
claim in question falls within the zone of interests to be protected or regulated by the
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constitutional guarantee in question." Wolfton, 616 F.3d at 1056 (internal quotation marks and
citation omitted). "As a prudential matter, even when a plaintiff has Article III standing, we
ordinarily do not allow third parties to litigate on the basis of the rights of others." Planned
Parenthood ofIdaho, Inc. v. Wasden, 376 F.3d 908, 917 (9th Cir. 2004).
The substance of the Pusateris' claims, at least so far as the Court can understand them, is
that KCSO and the named deputies failed to undertake or maintain criminal investigations and
prosecutions against individuals and organizations that the Pusateris believed were engaged in
criminal wrongdoing. The Pusateris lack standing to maintain such a claim: "[A) private citizen
lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973); see also Tia v. Criminal Investigation Demanded
as Set Forth, 441 F. App'x 457, 458 (9th Cir. 2011) (holding that a private citizen plaintiff"lacks
standing to compel an investigation or prosecution of another person."); Graves-Bey v. City and
Cnty. ofSan Francisco, 669 F. App'x 373, 374 (9th Cir. 2016) (holding same). Accordingly, the
Pusateris' claims are DISMISSED for lack of standing.
Statute of Limitations
Any claim under§ 1983 is subject to a statute of limitations. Because § 1983 does not
have an express statute of limitations, federal comis borrow the state statute of limitations for
personal injury actions. Owens v. Okure, 488 U.S. 235, 240 (1989). Oregon's two-year statute
of limitations for personal injury actions, ORS 12.110(1 ), applies to the Pusateris' § 1983 claims.
Cooper v. City ofAshland, 871F.2d104, 105 (9th Cir. 1989).
In this case, the Complaint was filed on January 10, 2018. Any claims that accrued prior
to January 10, 2016, are therefore barred by the statute of limitations. That would appear to
include the Pusateris' first, second, third, and fomih claims for relief.
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To the extent that the Pusateris intended to bring state law tort claims against KCSO, they
must comply with the requirements of the Oregon Tort Claims Act (OTCA), ORS 30.260-300.
"The Oregon Tort Claims Act provides an exclusive remedy for pursuing a tort claim against a
public body." Plumeau v. Sch. Dist. No. 40 Cnty of Yamhill, 130 F.3d 432, 436 (9th Cir. 1997).
The notice period for the OTCA "beings to run when the plaintiff knows, in the exercise of
reasonable care should have known, facts which would make a reasonable person aware of a
substantial possibility that a tort action exists." Id (internal quotation marks and citation
omitted). The OTCA requires that plaintiffs give notice of their claims to the public body in
question, usually within 180 days after the alleged loss or injury. ORS 30.275(2)(b). The burden
is on the plaintiff to show that the notice was timely. ORS 30.275(7). In this case, the Pusateris
do not mention any notice given to the KCSO and the Court notes that many of the incidents
referenced in the Complaint appear to have occurred more than 180 days before the filing of the
Leave to Amend
Finally, and most fundamentally, the Court is unable to discern the basis of the Pusateris'
claims, other than in the most general terms. Federal Rule of Civil Procedure 8 provides that a
civil complaint should include a "shmt and plain statement of the claim showing that the pleader
is entitled to relief." Fed. R. Civ. P. 8(a)(2). In this case, the Complaint presents its information
chronologically, but without the details and context necessary for the Comt to understand either
the Pusateris' claims or the facts underlying those claims. The Court is left to guess and infer
who has done what, when, and to whom and what any of those facts have to do with the
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The Court is mindful of the latitude given to pro se litigants, however, and the Pusateris
will be given leave to file an amended complaint. In drafting their amended complaint, the
Pusateris should endeavor to conect the deficiencies identified in this Order. The Pusateris
should also take care to include sufficient factual detail to allow the Court to better understand
the nature of the Pusateris' claims, although not so much detail that the amended complaint is not
"short and plain," as required by Rule 8.
For the reasons set fotih above, the Complaint, ECF No. 1, is DISMISSED with leave to
amend. Plaintiffs shall have thirty (30) days from the date of this Order in which to file an
amended complaint. Plaintiffs are advised that failure to file an amended complaint within the
allotted time will result in the entry of a judgment of dismissal. The Comi defers ruling on
Plaintiffs' IFP petition pending the filing of the amended complaint.
It is so ORDERED and DATED this
/ A a y of January, 2018.
United States District Judge
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