Ashbaugh v. McMinnville Police Department et al

Filing 65

OPINION & ORDER: YCDAO's and the YCCC's Motion to Dismiss 54 is deemed voluntarily Withdrawn, and Plaintiff Ashbaugh is directed to amend his pleading by not later than 12/13/2017. Signed on 11/29/17 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BRIAN C. ASHBAUGH,
Plaintiff,
3:16-CV-2332-PK
OPINION AND ORDER

v.

MCMINNVILLE POLICE DEPARTMENT,
YAMHILL COUNTY DISTRICT ATTORNEY'S
OFFICE, YAMHILL COUNTY CIRCUIT
COURT, and YAMHILL COUNTY JAIL,
Defendants.
PAPAK, Magistrate Judge:
Plaintiff Brian Cody Ashbaugh, at that time actingpra se, filed this action informa

pauperis against defendants the McMinnville Police Department (the "MPD"), the Yamhill
County District Attorney's Office (the "YCDAO"), the Yamhill County Circuit Court (the
"YCCC"), and the Yamhill County Jail (the "YCJ") on December 16, 2016. Effective April 18,
2017, having determined that Ashbaugh would benefit from court-appointed pro bona counsel, I

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made the first of several attempts to appoint counsel to represent Ashbaugh in connection with
his claims against the defendants. Ultimately, on May 11, 2017, Matthew N. Miller accepted the
appointment to represent Ashbaugh.
On June 13, 2017, Ashbaugh, acting through Miller as his legal representative, moved to
sever those of his claims in connection with which Miller was willing and able to represent him
from those of his claims in connection with which Miller was either unwilling or unable to
represent him, and for leave of court to amend his pleading in this action to restate only those
claims in connection with which he intended to proceed on a prose basis (with the understanding
that Ashbaugh, by and through Miller as his legal representative, would file a new action in
connection with which he would allege only those claims in connection with which Miller was
willing and able to represent him). On June 19, 2017, I granted Ashbaugh's motion to sever and
motion for leave to amend. On June 30, 2017, by and through Miller as his legal representative,
Ashbaugh filed the contemplated new action (the "17-1038 action"), naming only the YCDAO
and the YCJ as defendants therein, and alleging those defendants' liability under 42 U.S.C.

§ 1983 for the violation of his Fourth Amendment right to freedom from unreasonable seizure
and for the violation of his Fourteenth Amendment right to procedural due process in connection
with Ashbaugh's detention in the YCJ without arraignment from May 7 to 27, 2015.
Effective July 27, 2017, Ashbaugh filed an amended complaint in this action, apparently
without the assistance of Miller or any other legal representative (notwithstanding that, at that
time, Miller remained Ashbaugh's counsel of record in this action). By and through his amended
complaint, Ashbaugh appears to allege (i) the liability of the MPD, possibly under Oregon
common law, for false an·est and/or wrongful impiisonment, abuse of process, defamation, and

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discrimination, and perhaps additionally under Section 1983 for violation of his Fourth
Amendment right to freedom from umeasonable seizure and/or his Fourteenth Amendment right
to procedural due process, and perhaps additionally for violation of the Freedom oflnformation
Act, and (ii) the liability of the YCDAO, YCCC, and YCJ under Section 1983 for violation of his
Fourth Amendment right to freedom from unreasonable seizure, his Fourteenth Amendment right
to procedural due process, and his Seventh Amendment right to trial, and under Oregon common
law for defamation, "simulation oflegal process," and "forced homelessness." It appears possible
that Ashbaugh's claims against the YCDAO, YCCC, and the YCJ, including his Fourth and
Fourteenth Amendment claims, may (like the claims that were severed from this action effective
June 19, 2017) arise in part out of his detention in the YCJ without arraignment from May 7 to
27, 2015.
On August 9, 2017, Miller moved for leave to withdraw from representing Ashbaugh in
this action, and I granted the motion on that same day. Notwithstanding the foregoing, after the
YCDAO and YCCC moved for dismissal of Ashbaugh's claims against them herein, on October
5, 2017, Miller advised the court that he would represent Ashbaugh in this action for the limited
purpose of opposing those defendants' motion to dismiss.
Now before the court is the YCDAO's and the YCCC's motion (#54) to dismiss
Ashbaugh's claims against them in this action on the sole asserted ground of Eleventh
Amendment immunity from suit. I heard oral argument on behalf of the parties in connection
with the moving defendants' motion to dismiss on November 28, 2017 . 1 At oral argument, the
1

Ashbaugh was represented at oral argument by Miller, and additionally appeared and
spoke on his own behalf. The YCDAO, the YCCC, the YCJ and the MPD appeared through
their respective counsel.
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parties agreed that it would be appropriate for Ashbaugh to amend his pleading in this action a
second time, specifically to clarify that he alleges no claim herein that is also alleged in
connection with the 17-103 8 action and to abandon his claims to the extent alleged against
defendant the YCCC (on the ground that the YCCC clearly enjoys Eleventh Amendment
immunity from suit as a matter of law in connection with Ashbaugh's claims against it);
moreover, all defendants consented to such amendment, and defendants the YCDAO and the
YCCC agreed, on the understanding that it is not clear on the face of Ashbaugh's current pleading
whether or not the YCDAO enjoys Eleventh Amendment immunity from suit in connection with
Ashbaugh's claims, that such amendment would moot their pending motion (#54) to dismiss.
Accordingly, I directed Ashbaugh so to amend his pleading by not later than December 13, 2017,
and I advised all parties that, in the event Ashbaugh's second amended complaint appeared to
allege any claim also alleged in connection with the 17-103 8 action, I would strike any such
duplicative claim from the second amended complaint herein.
Having directed Ashbaugh to amend his pleading in a manner that the defendants agree
will render moot the moving defendants' motion to dismiss, I constrne the representations of the
YCDAO's and the YCCC's counsel at oral argument as a voluntary withdrawal of their motion to
dismiss. On that constrnction, the pending motion (#54) to dismiss is deemed withdrawn with
leave to refile in the event that Ashbaugh fails to amend his pleading as discussed above by
December 13, 2017.
CONCLUSION
For the reasons set forth above, the YCDAO's and the YCCC's motion (#54) to dismiss is

I II
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deemed voluntarily withdrawn, and plaintiff Ashbaugh is directed to amend his pleading as
discussed above by not later than December 13, 2017.

Dated this 29th day of November, 2017.

Honorable Paul Papak
United States Magistrate Judge

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