Johnson v. Multnomah County Sheriff's Office
Filing
5
OPINION & ORDER: Plaintiff's application for leave to proceed IFP 1 is granted. Plaintiffs motion for appointment of counsel 3 is denied. Based on the foregoing, Plaintiff's Complaint 2 is dismissed. Plaintiff may file an amend ed 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 prejudi ce. In addition, if Plaintiff chooses to file an amended complaint, he must also file an amended application for leave to proceed IFP. The Court will reevaluate its decision to grant Plaintiff's IFP application at that juncture, based on the amended application. See 9-page opinion & order attached. Signed on 4/20/2016 by Judge Marco A. Hernandez. (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:
Pro se Plaintiff Mario Johnson brings this action against Defendant Multnomah County
Sheriff’s Office. Plaintiff moves to proceed in forma pauperis (IFP). While Plaintiff’s IFP
application lacks the requisite detail for this Court to determine whether Plaintiff qualifies, the
Court grants the motion for the limited purpose of this initial review of Plaintiff’s Complaint. For
the reasons explained below, the Court dismisses the Complaint without prejudice. If Plaintiff
chooses to submit an amended complaint, he must also submit an amended IFP application.
1- OPINION & ORDER
BACKGROUND
Plaintiff’s Complaint stems from three separate incidents. The following facts are as
alleged in Plaintiff’s Complaint. Complaint, ECF 2.
On November 22, 2014, Plaintiff was arrested. Plaintiff was booked into the Multnomah
County Jail and then transferred to Multnomah County Inverness Jail. Plaintiff suffers from
chronic medical conditions and requires oncology treatment and medication. During the intake
process, Plaintiff informed medical staff of his treatment needs and was reassured that he would
receive timely treatment. However, while incarcerated, Plaintiff did not receive the treatment he
needed. He reported his symptoms daily and his family and friends contacted the jail; however,
his requests were ignored. As a result, he became very ill. After begging the medical nurse to
request the proper treatment, Plaintiff was sent to solitary confinement by the “jail doctor” and
Deputy Bryant as punishment for questioning the nurse’s medical knowledge. He remained there
for a week, despite efforts to talk to jail staff, including Sergeant Peters. Furthermore, he
continued to be denied treatment for the duration of his time in custody in the Inverness Jail.
On February 9, 2015, Plaintiff was transported by the Multnomah County Sheriff’s
Office from the Columbia River Correctional Institution (CRCI) to the Multnomah County
Justice Center (MCJC). Plaintiff had in his possession “materially sensitive” legal documents
related to the first incident described in this Complaint. Even though Plaintiff received approval
from “county staff” to keep these legal documents within his control, a sergeant accosted
Plaintiff, physically confined Plaintiff, and took his legal documents for several hours. When
Plaintiff received the documents back, several documents were missing and duplicates of some
documents were mistakenly returned to Plaintiff.
2- OPINION & ORDER
On February 12, 2015, Plaintiff was transported from the MCJC to Inverness Jail, on his
way back to CRCI. While at Inverness, Deputy Bryant seized Plaintiff’s legal documents and
read them. Deputy Bryant and three other deputies were angered by what they read and they had
an “overly aggressive reaction.” Plaintiff was released from his holding cell and taken to another
cell, where several deputies surrounded him and drew a privacy curtain to conceal their actions.
Deputy Bryant tased Plaintiff, roughed him up, and dragged him to a vehicle. Plaintiff did not
resist. Plaintiff was injured while being dragged to the vehicle and then was “thrown about in the
vehicle during transport.”
STANDARDS
A complaint filed in forma pauperis may be dismissed at any time, including before
service of process, if the court determines that:
(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
3- OPINION & ORDER
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
Plaintiff brings three claims against Defendant. Plaintiff alleges that the basis for
jurisdiction for his complaint is “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. 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.
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 at MCJC, a sergeant took legal documents from him.
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.
I.
Plaintiff fails to state a 42 U.S.C. § 1983 claim because he does not allege that any of
the injuries he suffered were caused by a custom or policy of Defendant.
Plaintiff cites 42 U.S.C. § 1983 as one of the statutes under which he brings his claims
against Defendant Multnomah County Sheriff’s Office. Section 1983 does not create any
substantive rights, but instead provides a vehicle for plaintiffs to bring federal constitutional and
statutory challenges against actions by state and local officials. Naffe v. Frey, 789 F.3d 1030,
1035 (9th Cir. 2015).
4- OPINION & ORDER
“Local government entities are considered ‘persons’ for purposes of § 1983 and can be
sued directly for monetary, declaratory, or injunctive relief where ‘the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation or decision
officially adopted and promulgated by that body's officers.’” Anderson v. Warner, 451 F.3d
1063, 1067 (9th Cir. 2006) (quoting Monell v. Dep't of Soc. Servs. of New York City, 436 U.S.
658, 690 (1978)). However, a municipality “cannot be held liable under § 1983 on a respondeat
superior theory,” that is, “solely because it employs a tortfeasor.” Monell, 436 at 691.
In order to hold Defendant liable under § 1983, Plaintiff must show (1) that he possessed
a constitutional right of which he was deprived; (2) that the Multnomah County Sheriff’s Office
had a policy; (3) that the policy “amounts to deliberate indifference” to Plaintiff’s constitutional
right; and (4) that the policy is the “moving force behind the constitutional violation.” City of
Canton v. Harris, 489 U.S. 378, 389-91 (1989). There also must be a “direct causal link” between
the policy or custom and the injury, and Plaintiff must be able to demonstrate that the injury
resulted from a “permanent and well settled practice.” Anderson, 451 F.3d at 1067. See also
Fotinos v. Fotinos, No. 14-15475, 2016 WL 1072351, at *1 (9th Cir. Mar. 18, 2016) (upholding
dismissal of a § 1983 claim that “failed to allege facts to support a finding that any of the
Defendants acted according to a formal governmental policy or a longstanding practice or
custom of the local governmental entity”).
Here, even assuming that Plaintiff could show that he possessed a constitutional right of
which he was deprived, his claims fail because they lack any allegation that Defendant had a
policy or that a policy amounted to deliberate indifference to Plaintiff’s rights and was the
moving force behind the constitutional violation. Without such an allegation, Plaintiff’s claims
5- OPINION & ORDER
are nothing more than an effort to hold Defendant liable because it employs certain people, such
as Deputy Bryant. Such liability is not available under Section 1983.
II.
Plaintiff fails to state a claim under the other statutes listed in the Complaint.
Plaintiff also fails to state a claim under the other statutes he cites as the basis for federal
jurisdiction: 42 U.S.C. §§ 1981, 1985, 1986, and 1988.
Plaintiff cannot assert claims under § 1981 because he does not allege facts to support a
finding that his alleged mistreatment had anything to do with his race. See Jones v. Bechtel, 788
F.2d 571, 574 (9th Cir. 1986) (stating that § 1981 “provides an action for discrimination based
on race”).
Plaintiff cannot assert claims under § 1985 because he does not allege facts to support a
finding that there was a conspiracy to interfere with certain civil rights. Section 1985 prohibits
five categories of conspiracy. Three of the five categories of conspiracy relate to interference
with the institutions and processes of the federal government: interfering with federal officers, §
1985(1); interfering with federal judicial proceedings, the first clause of § 1985(2); and
interfering with federal elections, the second clause of § 1985(3). Kush v. Rutledge, 460 U.S.
719, 724 (1983). The other two categories primarily relate to interference with the institutions
and processes of state government: conspiracies to obstruct the course of justice in state courts,
the second clause of § 1985(2); and conspiracies to prevent state authorities from securing a
person's equal protection of the laws, the first clause of § 1985(3). Id. at 725. None of Plaintiff’s
claims allege a conspiracy under § 1985.
Similarly, Plaintiff cannot assert claims under § 1986 claim because he lacks a valid §
1985 claim. See Zochlinski v. Regents of the Univ. of California, 578 F. App'x 636, 637 (9th Cir.
6- OPINION & ORDER
2014) (no § 1986 cause of action absent a valid § 1985 claim); Trerice v. Pedersen, 769 F.2d
1398, 1403 (9th Cir. 1985) (same).
Finally, Plaintiff cannot brings claims of constitutional violations under § 1988. The Civil
Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, authorizes the district courts to
award a reasonable attorney's fee to prevailing parties in civil rights litigation. Hensley v.
Eckerhart, 461 U.S. 424, 429-30 (1983). The purpose of § 1988 is to ensure “effective access to
the judicial process” for persons with civil rights grievances. Id. Accordingly, a prevailing
plaintiff “should ordinarily recover an attorney's fee unless special circumstances would render
such an award unjust.” Id. At this stage of the proceeding, the Court determines that Plaintiff
fails to state a claim upon which relief can be granted. Section 1988 is not implicated unless and
until Plaintiff prevails in this case.
III.
42 U.S.C. § 1983 is the proper vehicle for bringing Plaintiff’s claims of constitutional
violations.
In addition to the statutes listed in Plaintiff’s complaint, Plaintiff lists several
constitutional amendments—the Fifth, Sixth, Eighth, and Fourteenth Amendments—and
“invasion of privacy/excessive force” as further bases for federal jurisdiction. As discussed
above, the proper vehicle for bringing claims of constitutional violations against Defendant is
through a § 1983 action. For the reasons already explained, even accepting all facts alleged by
Plaintiff as true, the allegations do not support a § 1983 claim.
IV.
Plaintiff’s motion to appoint counsel is denied.
Finally, Plaintiff moves for a court-appointed attorney. There is no constitutional right to
counsel in a civil case. United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986).
However, pursuant to 28 U.S.C. § 1915(e), this Court has discretion to request volunteer counsel
for indigent parties in exceptional circumstances. Wood v. Housewright, 900 F.2d 1332, 1335
7- OPINION & ORDER
(9th Cir. 1990); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). While this Court
may request volunteer counsel in exceptional cases, it has no power to make a mandatory
appointment. Mallard v. United States Dist. Ct. of Iowa, 490 U.S. 296, 301-08 (1989).
In order to determine whether exceptional circumstances exist, this Court evaluates the
party’s likelihood of success on the merits and the ability of the party to articulate his or her
claim pro se in light of the complexity of the legal issues involved. Wood, 900 F.2d at 1335-36.
However, “[n]either of these factors is dispositive and both must be viewed together before
reaching a decision on request of counsel under section 1915(d).” Wilborn, 789 F.2d at 1331;
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
Here, it is inappropriate to consider Plaintiff's request when the Court is dismissing the
case. The Court denies the motion for appointment of counsel.
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8- OPINION & ORDER
CONCLUSION
Plaintiff’s application for leave to proceed IFP [1] is granted. Plaintiff’s motion for
appointment of counsel [3] is denied. Based on the foregoing, Plaintiff’s Complaint [2] is
dismissed. Plaintiff may file an 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. The Court will reevaluate its decision to grant Plaintiff’s
IFP application at that juncture, based on the amended application.
IT IS SO ORDERED.
Dated this ________________ day of _______________________, 2016
________________________________________________
MARCO A. HERNÁNDEZ
United States District Judge
9- OPINION & ORDER
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