Johnson v. Multnomah County Sheriff's Office
Filing
11
OPINION & ORDER: Plaintiff's amended application for leave to proceed IFP 9 is granted solely for the limited purpose of evaluating Plaintiff's amended complaint. Plaintiff's motion for appointment of counsel 8 is denied. B ased on the foregoing, Plaintiff's amended complaint 7 is dismissed. Plaintiff may file a second amended complaint, curing the deficiencies noted above, within 30 days of the date of this order. Plaintiff is advised that failure to file an ame nded complaint which cures the deficiencies noted may result in the dismissal of this proceeding with prejudice. In addition, if Plaintiff chooses to file an amended complaint, he must also file an amended application for leave to proceed IFP that co mplies with this Court's order. The Court will reevaluate its decision regarding Plaintiff's IFP status at that juncture, based on the amended application. See 6-page opinion & order attached. Signed on 6/7/2016 by Judge Marco A. Hernandez. Copy of opinion & order mailed to plaintiff. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARIO JOHNSON,
Plaintiff,
No. 3:16-cv-00633-HZ
v.
OPINION & ORDER
MULTNOMAH COUNTY
SHERIFF’S OFFICE,
Defendant.
Mario Lee Johnson
3727 South Thompson St. #4
Tacoma, WA 98418
Plaintiff Pro Se
HERNÁNDEZ, District Judge:
On April 13, 2016, pro se Plaintiff Mario Johnson brought this action against Defendant
Multnomah County Sheriff’s Office. Plaintiff also moved to proceed in forma pauperis (IFP) and
requested appointment of counsel. On April 20, 2016, this Court granted Plaintiff’s application
for leave to proceed IFP for the limited purpose of an initial review of Plaintiff’s complaint,
denied Plaintiff’s motion for appointment of counsel, and dismissed Plaintiff’s complaint with
1- OPINION & ORDER
leave to amend. Plaintiff submitted an amended complaint. However, it fails to comply with this
Court’s previous order and, therefore, the Court dismisses the amended complaint.
BACKGROUND
Plaintiff’s complaint stems from three separate incidents.1 Liberally construed, Plaintiff’s
first claim alleges that, while incarcerated in Inverness Jail, he was denied adequate medical care
by jail medical staff, Deputy Bryant, and Sergeant Peters. His second claim alleges that, while
being held in the Multnomah County Justice Center, a sergeant accosted Plaintiff, physically
confined Plaintiff, and took his legal documents for several hours. His third claim alleges that,
while at Inverness Jail, Deputy Bryant seized Plaintiff’s legal documents and, along with several
other deputies, injured Plaintiff by tasing him and dragging him to a vehicle for transport.
Plaintiff initially alleged that the basis for jurisdiction for his complaint was “Federal Question,”
and he alleges that the following constitutional or statutory rights are at issue: “42 USC sections
1983/1981/1985/1986/1988, Eighth Amendment/Sixth Amendment/Fifth
Amendment/Fourteenth Amendment Invasion of Privacy/Excessive Force.” Compl. 3, ECF 2.
The Court explained that, among other defects in Plaintiff’s complaint,
Plaintiff does not identify which rights are at issue in each claim. If Plaintiff chooses to
amend his Complaint after this Court dismisses it, he must identify for each claim which
Constitutional or statutory right is at issue.
Opinion & Order, April 20, 2015, ECF 5. The Court also found that Plaintiff failed to state a
claim under any of the statutes he listed as the basis for jurisdiction.
STANDARDS
A complaint filed in forma pauperis may be dismissed at any time, including before
service of process, if the court determines that:
Plaintiff’s allegations were summarized in detail in this Court’s April 20, 2015 Opinion & Order. See
ECF 5.
1
2- OPINION & ORDER
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such
relief.
28 U.S.C. § 1915(e)(2); see also Neitzke v. Williams, 490 U.S. 319, 324 (1989) (sua sponte
dismissals under section 1915 “spare prospective defendants the inconvenience and expense of
answering” complaints which are “frivolous, malicious, or repetitive”); Lopez v. Smith, 203 F.3d
1122, 1126 n.7 (9th Cir. 2000) (section 1915(e) applies to all in forma pauperis complaints, not
just those filed by inmates). A complaint is frivolous “where it lacks an arguable basis in law or
in fact.” Neitzke, 490 U.S. at 325; Jackson v. State of Ariz., 885 F.2d 639, 640 (9th Cir. 1989).
As the Ninth Circuit has instructed, however, courts must “continue to construe pro se
filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se complaint “‘must
be held to less stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). A pro se litigant will be given leave to
amend his or her complaint unless it is clear that the deficiencies of the complaint cannot be
cured by amendment. Lopez, 203 F.3d at 1130–31.
DISCUSSION
I.
Plaintiff’s complaint fails to comply with this Court’s previous order.
The Court previously found that Plaintiff failed to state a claim under any of the statutes
he cited as the basis for federal jurisdiction: 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988.
Plaintiff’s amended complaint fails to provide any additional allegations to support his
claims under §§ 1985, 1986, or 1988. Plaintiff was advised that failure to file an amended
complaint which cured the deficiencies noted by the Court could result in dismissal with
prejudice. Because Plaintiff failed to cure the defects as to his assertion that these statutes
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provide a basis for jurisdiction, any claims based on §§ 1985, 1986, or 1988 are dismissed with
prejudice.
As to Plaintiff’s citation to §§ 1981 and 1983, Plaintiff’s amended complaint supplements
his original complaint with additional alleged facts. However, Plaintiff continues to fail to
“identify which rights are at issue in each claim.” See Opinion & Order, April 20, 2015, ECF 5.
In addition, Plaintiff’s amended complaint consists solely of “supplemental information” which
must be read in conjunction with his original complaint in order to understand his allegations.
The Court is still unable to evaluate, for each of Plaintiff’s three claims, which constitutional or
statutory right is allegedly at issue.
The Court will provide Plaintiff with one more opportunity to amend his complaint. If
Plaintiff chooses to do so, he must comply with the following instructions. Plaintiff must submit
a second amended complaint that contains all of the factual allegations, bases for jurisdiction,
and claims in one document. The Court will not go back to look at Plaintiff’s original complaint
or first amended complaint. The second amended complaint will be considered as a “standalone” document and, therefore, Plaintiff should include everything he wants the Court to
consider in that document.
In addition, for each of Plaintiff’s three claims, he must state which constitutional or
statutory right is at issue. For example, if Plaintiff brings a claim based on inadequate medical
care, he should state that he brings the claim under 42 U.S.C. § 1983, alleging violations of his
Eighth Amendment rights. Then, in the “supporting facts” section of the complaint form,
Plaintiff should describe all of the factual allegations in support of his claim of inadequate
medical care. Plaintiff should not include claims brought under §§ 1985, 1986, or 1988, as those
are dismissed.
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II.
Plaintiff must provide additional details on his IFP application.
Plaintiff’s IFP application states that Plaintiff has not worked since June of 2008, nor
does he have a spouse or significant-other who is employed. Plaintiff states that he has not
received any money from any source in the last 12 months and does not own any real estate,
stocks, bonds, securities, other financial instruments, automobiles, valuable property, or any
other assets. However, Plaintiff lists regular monthly expenses such as housing, utilities, student
loans, medical bills, and “other bills.” Am. IFP App. 3-4, ECF 9. Plaintiff does not provide any
explanation for how he is able to pay these expenses in the absence of an income or other source
of money.
The Court is unable to determine whether to grant Plaintiff IFP status based on this
application. Plaintiff has failed to allege facts that would support a finding of poverty with any
degree of certainty. See United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981) (quoting
Jefferson v. United States, 277 F.2d 723, 725 (9th Cir.1960)) (noting that applicants under §
1915 must demonstrate their poverty with “some particularity, definiteness and certainty”).
III.
Plaintiff’s motion to appoint counsel is denied.
Plaintiff once again moves for a court-appointed attorney. As discussed in this Court’s
prior opinion, it is inappropriate to consider Plaintiff's request when the Court is dismissing the
case. The Court denies the motion for appointment of counsel.
CONCLUSION
Plaintiff’s amended application for leave to proceed IFP [9] is granted solely for the
limited purpose of evaluating Plaintiff’s amended complaint. Plaintiff’s motion for appointment
of counsel [8] is denied. Based on the foregoing, Plaintiff’s amended complaint [7] is dismissed.
5- OPINION & ORDER
Plaintiff may file a second amended complaint, curing the deficiencies noted above,
within 30 days of the date of this order. Plaintiff is advised that failure to file an amended
complaint which cures the deficiencies noted may result in the dismissal of this proceeding with
prejudice. In addition, if Plaintiff chooses to file an amended complaint, he must also file an
amended application for leave to proceed IFP that complies with this Court’s order. The Court
will reevaluate its decision regarding Plaintiff’s IFP status at that juncture, based on the amended
application.
IT IS SO ORDERED.
Dated this ________________ day of _______________________, 2016
________________________________________________
MARCO A. HERNÁNDEZ
United States District Judge
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