O'Callaghan v. City of Cannon Beach et al
Filing
6
Opinion and Order. Plaintiffs application for leave to proceed IFP 1 is granted. However, Plaintiffs 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. Signed on 10/5/2016 by Judge Marco A. Hernandez. (Mailed to Plaintiff this date.) (sss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHAEL O’CALLAGHAN,
Plaintiff,
No. 3:16-cv-01676-HZ
v.
OPINION & ORDER
CITY OF CANNON BEACH,
CANNON BEACH POLICE DEPT.,
CB PO BOWERMAN, LAURA
YOKOYAMA,
Defendants.
Michael O’Callaghan
P.O. Box 3321
Portland, OR 97210
Plaintiff Pro Se
HERNÁNDEZ, District Judge:
Pro se Plaintiff Michael O’Callaghan brings this action against Defendants City of
Cannon Beach, Cannon Beach Police Department, Cannon Beach Police Officer Bowman1, and
Laura Yokoyama (collectively, “Defendants”). Plaintiff moves to proceed in forma pauperis
Plaintiff names “CB PO Bowerman” as a defendant in his Complaint. Compl. 1, ECF 2. However,
throughout his Complaint, he refers to an “Officer Bowman.” E.g., id. Because the police report also
refers the officer as “Bowman,” the Court assumes that is the correct name and refers to him as Officer
Bowman throughout this Opinion.
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1- OPINION & ORDER
(IFP). Because he has no appreciable income or assets, the Court grants the motion. However,
the Court dismisses the Complaint.
BACKGROUND
Plaintiff’s Complaint stems from his interactions with the Cannon Beach Police
Department and its citation of Plaintiff for prohibited camping on North Cannon Beach. Plaintiff
alleges that Defendants violated his constitutional right to be free from unlawful search or
seizure and violated his constitutional right to travel. In addition, Plaintiff contends that
Defendants committed theft and, thus, violated Oregon Revised Statute § (O.R.S.) 164.015.
On August 18, 2014, Plaintiff was in a coffee shop when Officer Bowman asked him to
step outside. Compl. 1, ECF 2. Officer Bowman interrogated Plaintiff and accused Plaintiff of
illegally camping in Ecola State Park. Id. at 1-2. Plaintiff responded that the camping ordinance
was unconstitutional. Id. at 2. According to Plaintiff, Officer Bowman gave him the “better get
out of town before sunset” treatment. Id.
That night, Plaintiff hid and locked his bike, because he knew that the police were
looking for him. Id. When he looked for his bike in the morning, it was gone. Id. Plaintiff went to
the Cannon Beach Police Department and was told that his bike was there but that he had to wait
to talk to “Tom” before he could retrieve the bike. Id.
“The sheriff”2 arrived at the Police Department and interrogated Plaintiff for “at least 15
minutes,” during which time Plaintiff continually invoked his right to remain silent. Id. at 2-3.
Eventually, Plaintiff grew tired of the interrogation and said “keep the bike” and began to walk
away. Id. at 3. At that point, the sheriff grabbed Plaintiff by the shoulder and placed him under
It is not clear whether “Tom” and “the sheriff” is the same person. Compl. 2. Plaintiff attaches a report
from the Clatsop County Sheriff’s Office that makes clear that “the sheriff” who arrived was Mark
Whisler. Compl. 7.
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2- OPINION & ORDER
arrest. Id. Plaintiff received a citation for illegal camping. Id. He was then given his bike and
allowed to leave. Compl. Ex. 1 at 14.
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
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.
///
3- OPINION & ORDER
DISCUSSION
Plaintiff alleges that Defendants (1) violated Plaintiff’s Fourth Amendment rights, (2)
abridged Plaintiff’s constitutional right to travel, and (3) committed theft.
I.
Claims against City of Cannon Beach and Cannon Beach Police Department
While Plaintiff does not invoke 42 U.S.C. § 1983, the Court construes his claim as one
brought under this statute. 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).
“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 for City of Cannon Beach or Cannon Beach Police Department to be liable under
§ 1983, Plaintiff must show (1) that he possessed a constitutional right of which he was deprived;
(2) that City of Cannon Beach or Cannon Beach Police Department 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,
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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 Defendants 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
are nothing more than an effort to hold Defendant liable because it employs certain people, such
as Officer Bowman. Such liability is not available under Section 1983.
II.
Claims against Officer Bowman
The entirety of Plaintiff’s allegation regarding Officer Bowman is that Officer Bowman
asked him to step outside a coffee shop to talk with him, Officer Bowman interrogated Plaintiff
and told him he was camping illegally, and Officer Bowman gave Plaintiff the “better get out of
town before sunset” treatment. Compl. 1-2. Plaintiff does not claim that he was unreasonably
searched or seized when talking to Officer Bowman; therefore, he fails to state a claim under the
Fourth Amendment.
As to Plaintiff’s claim regarding the right to travel, he misunderstands what the Privileges
and Immunities Clause3, of the Constitution protects. “[T]he constitutional right to travel from
one State to another is firmly embedded in our jurisprudence.” Saenz v. Roe, 526 U.S. 489, 498
(1999) (internal quotation marks omitted). The right to travel “embraces at least three different
components. It protects the right of a citizen of one State to enter and to leave another State, the
Plaintiff refers to the Privileges and Immunities Clause as “Article 4 Section 2 Clause 1” of the
Constitution. See Compl. 1.
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right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present
in the second State, and, for those travelers who elect to become permanent residents, the right to
be treated like other citizens of that State.” Id. at 500. “Discrimination on the basis of out-of-state
residency is a necessary element for a claim under the Privileges and Immunities Clause.”
Giannini v. Real, 911 F.2d 354, 357 (9th Cir. 1990). Here, because Plaintiff has not alleged any
facts establishing that Officer Bowman discriminated against him on the basis of out-of-state
residency, he fails to state a claim.
Even assuming Plaintiff intended to assert a fundamental right to intrastate travel
protected by due process, his claim would fail because there is no clear right to intrastate travel.
Both the Supreme Court and the Ninth Circuit have declined to address whether citizens have a
constitutionally protected liberty interest in travel within a state or municipality. Mem'l Hosp. v.
Maricopa Cnty., 415 U.S. 250, 25556 (1974); Nunez by Nunez v. City of San Diego, 114 F.3d
935, 944 (9th Cir. 1997) n. 7; Lauran v. U.S. Forest Serv., 141 F. App'x 515, 520 (9th Cir. 2005).
Courts in this District have refused to expand the constitutional liberty interest to include such a
right. See, e.g., Fruitts v. Union Cty., No. 2:14-CV-00309-SU, 2015 WL 5232722, at *6 (D. Or.
Aug. 17, 2015), report and recommendation adopted, No. 2:14-CV-0309-SU, 2015 WL 5232696
(D. Or. Sept. 8, 2015); Hammel v. Tri–Cnty. Metro. Transp. Dist. of Oregon, 955 F. Supp. 2d
1205, 1210 (D. Or. 2013) (finding it “highly improbable” that the Ninth Circuit would recognize
a fundamental right to intrastate travel absent some form of absolute or intentional interference).
Finally, Plaintiff fails to state a claim against Officer Bowman for theft under Oregon
law. As a private individual, Plaintiff has no authority to bring criminal charges such as theft.
See Clinton v. Jones, 520 U.S. 681, 718 (1997) (explaining that criminal charges must be
brought by Executive Branch officials such as a District Attorney or the Attorney General).
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However, because this Court has a duty to construe Plaintiff’s filing liberally, it considers
whether Plaintiff can state a claim for conversion or trespass to chattels instead of theft. See State
v. Wise, 150 Or. App. 449, 455, 946 P.2d 363, 366 (1997) (discussing that conversion is the civil
action equivalent to a criminal action for theft). Oregon has adopted the definition of
“conversion” set forth in Restatement (Second) of Torts § 222A (1965). Scott v. Jackson Cty.,
244 Or. App. 484, 499–500, 260 P.3d 744, 752 (2011) (citing Mustola v. Toddy, 253 Or. 658,
664, 456 P.2d 1004 (1969)). That definition provides that “conversion is an intentional exercise
of dominion or control over a chattel which so seriously interferes with the right of another to
control it that the actor may justly be required to pay the other the full value of the chattel.”
Restatement (Second) of Torts § 222A (1965); see also Mustola, 253 Or. at 633. The
Restatement further provides that:
In determining the seriousness of the interference and the justice of requiring the actor to
pay the full value, the following factors are important:
(a) the extent and duration of the actor's exercise of dominion or control;
(b) the actor's intent to assert a right in fact inconsistent with the other's right of
control;
(c) the actor's good faith;
(d) the extent and duration of the resulting interference with the other's right of
control;
(e) the harm done to the chattel;
(f) the inconvenience and expense caused to the other.”
Id. The list of factors in the Restatement for determining “whether a conversion occurs is
nonexclusive . . . and no one factor is considered dispositive.” Scott v. Jackson Cty., 244 Or.
App. 484, 500, 260 P.3d 744, 753 (2011) (citation omitted). Under Oregon law, “[t]he elements
of a claim for trespass to chattels are, for relevant purposes, the same [as a claim for conversion];
the only arguable differences are the extent of the interference and remedy.” Graham v. U.S.
Bank, Nat'l Ass'n, No. 3:15-CV-0990-AC, 2015 WL 10322087, at *12 (D. Or. Dec. 2, 2015),
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report and recommendation adopted, No. 3:15-CV-00990-AC, 2016 WL 393336 (D. Or. Feb. 1,
2016) (citing Scott, 244 Or. App. at 500).
Even construing Plaintiff’s theft claim as one for conversion or trespass to chattels,
dismissal is still appropriate. “Interference with another's property alone is not sufficient to
amount to conversion; there need be intent to assert a right over the property.” Brooks v.
Caswell, No. 3:14-CV-01232-AC, 2016 WL 1056977, at *6 (D. Or. Mar. 14, 2016) (citing Fogh
v. McRill, 153 Or. App. 159, 167 (1998)). Plaintiff alleges that there was “collusion between the
CB Police and the sheriff to deprive plaintiff of his property so as to trap him.” Compl. 3.
Assuming “CB Police” refers to Officer Bowman, Plaintiff’s allegation lacks the requisite intent
to state a claim for conversion because he does not allege that Officer Bowman intended to assert
a right over his bike inconsistent with Plaintiff’s ownership interest, but rather that Officer
Bowman intended to use the bike as a way of enticing Plaintiff to come to the police station.
Further, the fact that Officer Bowman may have kept Plaintiff’s bike for one night cannot be said
to be “an intentional exercise of dominion or control over a chattel which so seriously interferes
with the right of another to control it that the actor may justly be required to pay the other the full
value of the chattel,” especially given that there was no damage to the bike. See Brooks, 2016
WL 1056977 at *6 (citing Madden v. Condon Nat. Bank, 76 Or. 363, 370 (1915) (“[A] plaintiff
may recover damages in an action for conversion only if the plaintiff can demonstrate she
actually suffered injury.”)). While Plaintiff may have been inconvenienced for a night, there is
no allegation that this temporary deprivation of his bike caused him any expense. In sum, the
Court considers the factors listed in the Restatement and concludes that Plaintiff cannot state a
claim.
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III.
Claims against Laura Yokoyama
Plaintiff’s Complaint does not mention defendant Laura Yokoyma. As an exhibit to the
Complaint, Plaintiff attaches an email from Ms. Yokoyama which identifies her as an
Administrative Assistant at Cannon Beach Police Department. Compl. 8. It appears that someone
(the sender’s name is erased) sent Ms. Yokoyama a photo of Plaintiff and Ms. Yokoyama
forwarded the photo to Officer Bowman. Id. Without any more information about Ms.
Yokoyama or any allegations regarding her conduct, Plaintiff fails to state any claim against her.
CONCLUSION
Plaintiff’s application for leave to proceed IFP [1] is granted. However, 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.
IT IS SO ORDERED.
Dated this ________________ day of _______________________, 2016
________________________________________________
MARCO A. HERNÁNDEZ
United States District Judge
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