Calhoun v. City of Portland et al

Filing 65

OPINION AND ORDER: I construe Mr. Calhoun's Memorandum of Points and Authorities 51 as a motion to file an amended complaint and DENY the motion as moot. I DENY PPB Defendants' Motions to Strike 55 and 64 ... (see order attached) Signed on 3/21/2018 by Judge Michael W. Mosman. (kms)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

ABDUL KHALIS CALHOUN,
No. 3:17-cv-01020-MO
Plaintiff,
OPINION AND ORDER
v.

PORTLAND POLICE BUREAU (PPB),
JOSHUA DERY., in his individual and
official capacity RONALD HOSEL Y in
his individual and official capacity, D.
SEAN BURNS, in his individual and
official capacity et al., and AMERICAN
MEDICAL RESPONSE (AMR),
BECKY CLARK, agent in her individual
and official capacity, et al.,
Defendants.
MOSMAN,J.,
Plaintiff Abdul Khalis Calhoun is proceeding prose in this civil rights action. On December 14,
2017, he filed an Amended Complaint, a Memorandum of Points and Authorities, a Declaration of
Service of his Amended Complaint, and a Jury Trial Demand for Resolution of Dispute in Commercial
Law. Portland Police Bureau ("PPB") and American Medical Response ("AMR") Defendants each filed
Motions to Dismiss the Amended Complaint under Rules 12(b) and 41 (b), and PPB Defendants moved
to strike documents Mr. Calhoun filed with his Amended Complaint and in support of his Response
opposing the Motions to Dismiss. The Parties have fully briefed the Motions, and as explained below, I
GRANT Defendants' Motions to Dismiss [55 and 56], and DENY the PPB Defendants' Motions to
Strike [55 and 64].
1 -OPINION AND ORDER

A. Background.
An attorney represented Mr. Calhoun when he filed this case in June 2017. The initial

Complaint named AMR, Inc., the City of Po1iland, Joshua Dery, Kyle Stutevoss, Ronald Hoesly, and D.
Sean Bums as defendants. (Compl., dkt. no. 1). Mr. Calhoun's then-counsel prepared a summons for
issue by the Clerk of the Comi. Mr. Calhoun's then-counsel directed the summons for AMR, Inc. to
Lori A.E. Evans, who the summons described as "AMR's authorized representative." (Summons, dkt.
no.3).
In late September, Mr. Calhoun's attorney moved to withdraw. (Mot. to Withdraw as Counsel,

dkt. no. 27). During the hearing on the motion to withdraw at which Mr. Calhoun, his then-attorney, and
counsel for Defendants personally appeared, the Comi granted Mr. Calhoun's then-counsel's motion to
withdraw and gave Mr. Calhoun sixty days to find new counsel. (Min. of Proceedings, dkt. no. 33). At
a telephone status conference in early December, Mr. Calhoun indicated he planned to proceed prose,
and the Court granted his oral request for leave to file an Amended Complaint but specified that the
Amended Complaint could not add any new paiiies to the case. (Min. of Proceedings, dkt. no. 50).
Shortly after the status conference, Mr. Calhoun filed his Amended Complaint, which Defendants now
move to dismiss.

B. Legal Standards.
Court must liberally construe documents filed by pro se litigants, and must hold a pro se
complaint, "however inartfully pleaded," to a "less stringent standards than foimal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). Cf. Fed. Rule Civ. Proc. 8(e)
("Pleadings must be construed as to do justice"). The rule, however, "applies only to a plaintiff's factual
allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). "'[A] liberal interpretation of a civil
rights complaint may not supply essential elements of the claim that were not initially pied.'" Bruns v.

2 -OPINION AND ORDER

Nat'! Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673
F.2d 266, 268 (9th Cir. 1982)).
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim
showing that the pleader is entitled to relief." Specific facts are not necessary, but a plaintiff must allege
facts that establish "more than a sheet possibility that a defendant has acted unlawfully" and "raise a
right to relief above the speculative level." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Put another
way, a claim for relief must be plausible, not just possible. Id. When ruling on a defendant's motion to
dismiss for failure to state a claim brought under Federal Rule of Civil Procedure 12(b)(6), a judge must
accept as true all of the factual allegations contained in the complaint. Id.
Federal Rule of Civil Procedure 12(b)( 5) allows a judge to dismiss a complaint for insufficient
service of process. A plaintiff must serve process on a defendant within 120 days after a complaint is
filed. Fed. R. Civ. P. 4(m).
Federal Rule of Civil Procedure 41 (b) allows a defendant to move to dismiss claims against it if
a plaintiff fails to comply with a court order.
Federal Rule of Civil Procedure 12(f) allows a court to strike "redundant, immaterial,
impertinent, or scandalous matters.

C. Discussion.
1. The PPB Defendants' Motions to Strike.

The PPB Defendants move to strike the "Citation" and Memorandum of Points and Authorities
that Mr. Calhoun filed along with his Amended Complaint as well as the document identified as a copy
of the original Complaint in this matter that Mr. Calhoun filed in support of his Response in Opposition
to the Motions to Dismiss. While the PPB Defendants conectly identify the documents as redundant or
immaterial, striking the documents from the record would serve no purpose.

3 -OPINION AND ORDER

2. The PPB and AMR Defendants' Rule 41(b) Motion to Dismiss.
In his Amended Complaint, Mr. Calhoun added two new parties: Becky Clark and the PPB.
Defendants both move to dismiss these new parties under Rule 41 (b) on the grounds the Court ordered
Mr. Calhoun not to add any new parties to the case. In his Response, Mr. Calhoun argues his prior
counsel "did 'in fact' incorporate Becky Clark, agent for AMR, as well as Portland Police Bureau ...
within this cause of action." (Resp. at 3, dkt. no. 59).
Federal Rule of Civil Procedure 10(a) requires that requires that the caption of the complaint
include the names of all of the parties to the action; merely mentioning or incorporating a party within a
Complaint does not make them a party. I dismiss Becky Clark and the Po1iland Police Bureau 1 from
this action with prejudice on the grounds that Mr. Calhoun's addition of these two parties to his
Amended Complaint violated the Court's Order that he not add any new parties when amending his
complaint.

3. AMR Defendant's Rule 12(b)(5) Motion to Dismiss for Failure to Serve any AMR
Entity.
AMR moves to dismiss Mr. Calhoun's Amended Complaint under Federal Rule of Civil
Procedure 12(b)(5) for failure to properly serve any AMR entity. AMR Defendants explain that Mr.
Calhoun's former counsel named AMR, Inc. as a defendant, prepared a summons for issue directed to
Laurie A.E. Evans, an alleged authorized representative for AMR, Inc. in Greenwood Village,
Colorado. (AMR's Mem. Supp. Mot. Against Am. Compl.at 3, dkt. no. 57). Then, Mr. Calhoun' s
former counsel mailed the summons and a copy of the original Complaint along with a letter to Ms.
Evans addressing her as the "registered agent for AMR." (Id.). While AMR, Inc. is not a registered

1

Additionally, I dismiss the Portland Police Bureau from this action because it is not a proper defendant.
Lukens v. Portland Police Bureau, et al., No. 3:11--cv-00827-MO, 2011WL5999376 at*2 (D. Or. Nov.
29, 2011) ("[T]he Portland Police Bureau is not a separate entity from the City of Portland and is not
amenable to suit. It is merely the vehicle through which the city fulfills its police functions.").
4 -OPINION AND ORDER

corporate entity in either Oregon or Colorado, the Oregon Secretary of State's office shows American
Medical Response N01ihwest, Inc. is an Oregon corporation with a principle place of business in
Colorado with a registered agent in Salem, Oregon. (Id) .
In Response to AMR Defendant's motion to dismiss for lack of service, Mr. Calhoun says only
that his former counsel did not forward service documents to him. (Resp.at 5, dkt. no. 59). The same
day Mr. Calhoun filed his Response, his former counsel filed a "Certificate of Service by all Plaintiffs
Upon AMR," stating that AMR was served by certified mail on July 24, 2017, by a letter addressed to
"Ms. Laurie A.E. Evans" in Greenwood Village, Colorado. (Certificate of Service, dkt. no. 61 ).
To serve a corporation, a plaintiff must deliver a copy of the summons and of the complaint, in
the manner set forth b Rule 4, to an officer, a managing or general agent, or any other agent authorized
by appointment of law to receive service of process. Fed. R. Civ. P .4(h)(l )(B). Here, it is clear that
Mr. Calhoun's former counsel did not serve an officer, general agent, or authorized agent of any AMR
entity. As stated in AMR's Motion to Dismiss briefing and as indicated by the Oregon Secretary of
State's records, Ms. Evans is not the registered agent for any AMR entity. Accordingly, AMR is
dismissed from this action for lack of service.
As AMR Defendants point out in their Motion, Federal Rule of Civil Procedure 4(m) requires
service of process on a defendant 120 days after a plaintiff files a complaint. Here, Mr. Calhoun's thencounsel first filed a complaint on June 29, 2017. The 120 days to serve an AMR entity ran on October
27, 2017. Given however, that Mr. Calhoun's prior counsel's failed to correctly serve an AMR entity
and Mr. Calhoun apparently relied on his prior counsel's incorrect service, I will grant Mr. Calhoun
additional time to properly serve any amended complaint on an AMR entity. Failure to properly serve
an AMR entity within the additional time given, however, will result in dismissal of any amended
complaint against an AMR entity for failure to properly serve.

5 -OPINION AND ORDER

4. PPB and AMR Defendants' Rule 12(b)(6) Motion to Dismiss for Failure to State a
Claim.
Both PPB and AMR Defendants seek to dismiss Mr. Calhoun's Amended Complaint under
Federal Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Mr. Calhoun's
Amended Complaint alleges ten "causes of action." PPB and AMR Defendants move to dismiss some
of Mr. Calhoun's claims without prejudice and some with prejudice. When a claim is dismissed
without prejudice, it means that the plaintiff has an opportunity to cure the deficiencies in his or her
pleading with an amended complaint. A court should only dismiss a prose plaintiffs compliant with
prejudice when it is clear that clear the deficiencies cannot be cured by amendment. Eldridge v. Block,
832 F.2d 1132, 1135-36 (9th Cir. 1987).
Defendants move to dismiss the following claims with prejudice: (1) Oregon Constitution
Article 1, §§ 9, 13, 16, and 20 claims in the Second, Third and Fomih Cause of Action; (2) Fifth Cause
of Action; (3) Sixth Cause of Action; (4) Seventh Cause of Action; (5) Eighth Cause of Action; (6)
Ninth Cause of Action; and (7) Tenth Cause of Action. Defendants correctly assert that Mr. Calhoun
has no cause of action under Article I,§§ 9, 13, 16, and 20 of the Oregon Constitution. Hunter v. City
of Eugene, 309 Or. 298, 787 P.2d 881 (1990) ("Oregon's Bill of Rights provides no textual or historical
basis for implying a right to damages for constitutional violations."). Because Mr. Calhoun has no
cause of action under the Oregon Constitution, he cannot cure the defects in his claims under the
Oregon Constitution through amendment of his Complaint. Accordingly, I grant Defendants' Motion
to Dismiss Mr. Calhoun's claims under the Oregon Constitution in the Second, Third, Fomih, and Sixth
Causes of Action in his Amended Complaint with prejudice.
Defendants also correctly assert that Mr. Calhoun cannot state claims for relief under criminal
statutes. Amendment cannot cure this defect. Accordingly, I grant Defendants' Motion to Dismiss Mr.
Calhoun's Fifth, Sixth, Ninth, and Tenth causes of action brought under criminal statutes with

6 -OPINION AND ORDER

prejudice. In an abundance of caution, I dismiss Mr. Calhoun's Seventh Cause of Action without
prejudice to amending this claim to state a civil tort claim for assault or battery. Mr. Calhoun, however,
must be mindful of the elements of a civil assault or battery claim in any amended complaint, including
the element of use of physical violence or excessive force.
Defendants argue that Mr. Calhoun's Eighth Cause of Action, Trespass to Person should be
dismissed with prejudice because it not a recognized cause of action and simply mirrors his claims that
Defendants violated his Fourth Amendment claims in his Second Cause of Action. I agree that
Trespass to Person is not a cognizable cause of action and that the allegations in this cause of action
mirror the allegations in Mr. Calhoun's claims under the Fourth Amendment in his Second and Fourth
Causes of Action-Defendants trespassed against Mr. Calhoun by allegedly "conducting an unlawful
blood draw, by unlawfully chaining plaintiff down without consent and without a lawful search
warrant." (Arn. Compl. at 14-15, dkt. no. 52). I grant Defendants' motion to dismiss the Eight Cause of
Action for failure to state a cognizable cause of action but dismiss it without prejudice. While I decline
to dismiss the Eighth Cause of Action with prejudice, I caution Mr. Calhoun that any amended
complaint he files should not contain repetitive causes of action.
This leaves Mr. Calhoun's First Cause of Action and the portions of his Second, Third, and
Fourth causes of action that do not rest on the Oregon Constitution. I find that Mr. Calhoun's First
Cause of Action fails to state any cognizable legal theory or any claim for relief. It quotes from, among
other things, various civil and criminal statutes, the Oregon and United States Constitutions, and cites
the right to attorney's fees under various federal statutes, and appears to be more an introduction to the
Amended Complaint than an actual claim. Because Mr. Calhoun's First Cause of Action is so
disjointed, it is impossible to determine whether he can cure its deficiencies with amendment. In an

7 - OPINION AND ORDER

abundance of caution, however, I grant dismiss Mr. Calhoun's First Cause of Action without prejudice
and with leave to amend.
Mr. Calhoun's Second, Third, and Fourth Causes of Action allege violations of the Fourth,
Eighth, and Fourteenth Amendments. As Defendants note, Mr. Calhoun's Amended Complaint
provides few factual allegations. He alleges only that around July 4, 2015, the Defendants chained him
to the floor and drew his blood without a search warrant. (Am Compl. at pp. 10, 11, 12, 14). These
facts are insufficient to support Mr. Calhoun's claims that Defendants violated his Fourth, Eighth, and
Fourteenth Amendment rights. Although he makes conclusory allegations that all the Defendants acted
under color of state law to violate his constitutional rights, he does not allege specifically in what acts
each named defendant engaged. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th
Cir.1984). (stating even prose plaintiffs "must allege with at least some degree of particularity overt
acts which defendants engaged in that support [his] claim."). Mr. Calhoun's "[v]ague and conclusory
allegations of official participation in civil rights violations are not sufficient to withstand a motion to
dismiss." Ivey, 673 F.2d at 268. Accordingly, I dismiss the portions of Mr. Calhoun's Second, Third,
and Fourth Causes of Action that claim violations of the U.S. Constitution with leave to amend.

D. Conclusion.
I construe Mr. Calhoun's Memorandum of Points and Authorities [51] as a motion to file an
amended complaint and DENY the motion as moot. I DENY PPB Defendants' Motions to Strike [55
and 64].
I GRANT the PPB and AMR Defendants' Rule 12(b)(5) and (6) and 41(b) Motions to Dismiss
[55 and 56]. I dismiss Mr. Calhoun's claims against Becky Clark and the PPB with prejudice. Any
amended complaint must not include these parties. I dismiss Mr. Calhoun's claims against AMR for
failure to properly serve any AMR entity. I dismiss Mr. Calhoun's claims under the Oregon

8 -OPINION AND ORDER

Constitution and criminal statutes in his Second, Third, Fourth, Fifth, Sixth, Ninth, and Tenth Causes of
action with prejudice and without leave to amend. Mr. Calhoun may, however, amend his Seventh
Cause of Action to state a civil tort claim for assault or battery. I dismiss Mr. Calhoun's First Cause of
Action and his claims of violations of his Fourth, Eighth, and Fourteenth Amendment rights in his
Second, Third, and Fourth Causes of action with leave to amend. Finally, I dismiss Mr. Calhoun's
Eighth Cause of Action-Trespass to Person-with leave to amend. I remind Mr. Calhoun, however,
that any amended complaint should not contain duplicative claims for relief.
Mr. Calhoun is granted thirty days from the date this order is filed to file an amended complaint.

Failure to file an amended compliant will result in dismissal of this action. If Mr. Calhoun files an
amended complaint that includes claims against an AMR entity, he is granted thirty days from the date
the amended complaint is filed to properly serve the amended complaint on an AMR entity.

DATED this

t(

day of March, 2018.

Chief United States

9 -OPINION AND ORDER