Walsh v. City of Portland et al

Filing 22

ORDER: Defendants' Motion to Dismiss 15 is Granted with prejudice as to Defendant Portland Police Bureau, and without prejudice as to Defendants Mayor Ted Wheeler and the City of Portland. Plaintiff may file an amended complaint correcting the deficiencies noted in this Order within thirty days. Signed on 5/23/18 by Magistrate Judge Paul Papak. (gm)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JOSEPH WALSH,
No. 3:17-cv-01899-PK
Plaintiff,

ORDER

v.
CITY OF PORTLAND, et al.,
Defendants
PAP AK, Magistrate Judge:

Pro se Plaintiff Joseph Walsh brings this civil rights action against Defendants City of
P01tland, Mayor Ted Wheeler, and the Portland Police Bureau, alleging that Defendants violated
his First Amendment rights during a protest on June 4, 2017 in downtown Portland.
Defendants move to dismiss the Complaint for failure to state a claim. For the following reasons,
I grant Defendants' motion to dismiss with prejudice as to the P01tland Police Bureau and
without prejudice as to Mayor Wheeler and the City of Portland. Plaintiff may file an amended
complaint in accordance with this Order within thirty days.

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ORDER

BACKGROUND
In his complaint, Plaintiff alleges:
On June 4, 2017, I attended a large protest located in Chapman Park, Lowsdale
Park and in front of City Hall. 1 I am a 7 5 yr. old veteran who is on 24/7 oxygen
and is in poor health. I was attacked without notice by the Portland police using
unknown chemical weapons. I had to be removed from the park before permanent
damage was done to me.
Comp!. 5, ECF No. 2.
In his response brief, Plaintiff includes further factual background, stating,
The first indication that I had that something was wrong was a cloud of smoke
coming towards us from Terry Sluunk Park2 which was across the street from
where we were sitting on the benches. I was pulled out of the park by Malcolm
Chaddock who was in a panic because he feared for my health. We went two
blocks to 4th Avenue and Mr. Chaddock got his private truck and took me out of
the area. I was shaken and wondered for the next few days what would be the
result of being exposed to this chemical. As we depmied the park the police fired
rubber bullets and used concussion grenades. We were all now terrified that we
would be arrested or seriously injured by the actions of the police.
Pl.'s Resp. 3 (unpaginated document), ECFNo. 19. Because Plaintiff is representing himself, I
will treat the factual statements in his response brief as though they had been alleged in his
complaint.
As the basis for federal question jurisdiction, Plaintiff cites the "Federal Constitution, 1st
Amendment Rt. of Assembly[,] petition the government." Comp!. 4. For relief, Plaintiff seeks
"a permanent injunction against the City of P01iland in the use of chemical warfare against their
citizens." Comp!. 6. Plaintiff also seeks $500,000 in damages "because of the severity of the

1

Defendants state that Plaintiff is apparently referring to Chapman Square and Lownsdale
Square. Defs.' Mot. Dismiss 2 n.1, ECF No. 15.
2

Defendants state that they "assume that Plaintiff is referring to Terry Schrunk Plaza, which is
located across SW Madison St. from Chapman Square." Defs.' Reply 2 n.2.
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action taken by the" Portland Police Bureau." Comp!. 6.
MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER RULE 12(B)(6)
A complaint must contain "a shmt and plain statement of the claim showing that the
pleader is entitled to relief," Fed. R. Civ. Pro. 8(a)(2), and a complaint that fails to do so is
subject to dismissal pursuant to Rule 12(b)(6). "To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible
on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At/. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). To show plausibility, the plaintiff must do more than show "a sheer
possibility that a defendant has acted unlawfully." Id. The comt is not required to accept a
complaint's legal conclusions. Id. "Dismissal is proper when the complaint does not make out a
cognizable legal theory or does not allege sufficient facts to suppmt a cognizable legal theory."
Chubb Custom Ins. Co. v. Space Sys./Loral Inc., 710 F.3d 946, 956 (9th Cir. 2013). Bare

assertions that amount to nothing more than a "formulaic recitation of the elements" of a claim
"are concluso1y and not entitled to be assumed true." Iqbal, 556 U.S. at 680-81. Even under the
liberal pleading standard of Rule 8(a)(2), "a plaintiff's obligation to provide the grounds of his
entitlement to reliefrequires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations and
quotations omitted). "Determining whether a complaint states a plausible claim for relief ... [is]
a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Iqbal, 556 U.S. at 679.
The cou1t should construe the pleadings of a pro se litigant more leniently than those
drafted by a lawyer. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). "'Unless it is

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absolutely clear that no amendment can cure the defect, ... a pro se litigant is entitled to notice
of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action."'
Garity v. APWU Nat'! Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (quoting Lucas v. Dep't of
Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam) (alteration in Garity)).

DISCUSSION
Because Plaintiff cites the First Amendment as the basis for his claim here, I construe his
claim as being under 42 U.S.C. § 1983. "To state a claim under§ 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state law." West v.
Atkins, 487 U.S. 42, 48 (1988). The First Amendment protects activities such as demonstrations
and protest marches. Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996).

I. The Portland Police Bureau Is Not a Proper Defendant
Plaintiff names the Portland Police Bureau as a defendant. Defendants argue that the
Portland Police Bureau should be dismissed because it is not subject to suit under§ 1983. I
agree. "'A city police department is not a separate entity from the city itself and thus is not
amenable to suit. It is merely the vehicle through which the city fulfills its policing functions.
Suit must be brought against the city itself."' Wimett v. Sothern, No. 3:12-cv-01406-HU, 2013
WL 3973866, at *3 (D. Or. July 31, 2013) (quoting Keller v. City ofPortland, No. CV-98-263ST, 1998 WL 1060222, at *3 (D. Or. Nov. 13, 1998) (internal citations omitted by Wimett)). I
dismiss the Pmiland Police Bureau with prejudice.

II. Mayor Ted Wheeler
Plaintiff names Pmiland Mayor Ted Wheeler as a defendant. Plaintiff makes no
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allegations about Mayor Wheeler. In his response brief, Plaintiff states, "The mayor of the city is
also the Commissioner of Police and the highest ranking police officer in the leadership of the
police bureau. That is why both the mayor and the police [are] listed as defendants, they are both
decision makers and we should let a jmy decide who did what after all the evidence is submitted
at trial." Pl. 's Resp. 4-5.
Defendants argue that Mayor Wheeler should be dismissed from this action for two
reasons. First, Defendants contend that because Plaintiff appears to name Mayor Wheeler only in
his official capacity as mayor, he should be dismissed as a redundant defendant because the City
of Portland is also mimed as a defendant. I agree. Because "[a]n official capacity suit against a
municipal officer is equivalent to a suit against the entity, [w]hen both a municipal officer and a
local govermnent entity are named, and the officer is named only in an official capacity, the court
may dismiss the officer as a redundant defendant." Center for Bio-Ethical Reform, Inc. v. Los

Angeles Cty. Sheriff Dep't, 533 F.3d 780, 799 (9th Cir. 2008) (citations omitted). To the extent
Wheeler is being sued in his official capacity, he is dismissed.
Second, Defendants argue that if Plaintiff is naming Mayor Wheeler in his individual
capacity, Plaintiff has failed to allege that Wheeler personally took part in the alleged deprivation
of Plaintiffs rights. To be liable under§ 1983, a defendant must have personally participated in
the alleged misconduct. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Because there is no

respondeat superior liability under § 1983, id., a supervisor cannot be liable merely because a
subordinate engaged in illegal behavior. "A supervisor is liable under§ 1983 for a subordinate's
constitutional violations 'if the supervisor participated in or directed the violations, or knew of
the violations and failed to act to prevent them."' Maxwell v. Cty. a/San Diego, 708 F.3d 1075,
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1086 (9th Cir. 2013) (quoting Taylor, 880 F.2d at 1045). Because Plaintiff has not alleged that
Wheeler personally took part in the alleged deprivation of his rights, or that Wheeler knew of the
alleged deprivations and failed to prevent them, I dismiss Wheeler as a defendant in his
individual capacity without prejudice.

III. City of Portland
Plaintiff names the City of Portland (the City) as a defendant. Defendants contend that
Plaintiff has failed to state a claim against the City. I agree and dismiss Plaintiffs claim against
the City without prejudice.
For Plaintiff to state a claim for violation of his rights under the First Amendment, he
must plead facts showing that the defendant's conduct "deterred or chilled [the plaintiffs]
political speech and such deterrence was a substantial or motivating factor in [the defendant's]
conduct."' lvfendocino Envtl. Ctr. v. i\Iendocino Cty., 192 F.3d 1283, 1300 (9th Cir.1999)
(alterations in 1vfendocino Envtl.) (quoting Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir.
1994)). The question is whether the official's acts would "would chill or silence a person of
ordinaty firmness from future First Amendment activities." Id. (citations and quotation marks
omitted).
Here, although Plaintiff alleges that he was "attacked without notice by the Portland
Police," Comp!. 5, he does not allege that any police officers attacked him or threatened to do so.
Instead, he alleges (considering his statements in the Complaint and the response brief) that
during the protest, he saw a cloud of smoke coming towards him from across the street, and
another person then helped him leave the area to prevent exposure to the smoke. Plaintiff
alleges that as he left the protest, police officers were firing rubber bullets and using concussion

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grenades, but he does not allege that the bullets or grenades were directed at him. He also alleges
that in the days after the events, he feared that he had been exposed to a chemical agent, but he
does not allege that he suffered any actual harm. Considering the allegations in the Complaint
and the statements in Plaintiffs response brief together, I conclude that Plaintiff has failed to
allege that the City or its police officers directed their actions against him. Plaintiff therefore has
not stated a claim for a violation of his First Amendment rights. I agree with Defendants that
Plaintiffs allegations about his fear of future police misconduct are not sufficient to show a First
Amendment violation. See Olagues v. Russoniello, 770 F.2d 791, 797 (9th Cir. 1985) ("mere
'allegations of a subjective chill' do not suffice to present a justiciable claim") (quoting Laird v.

Tatum, 408 U.S. 1, 13-14 (1972)).
Furthermore, the City may not be held vicariously liable under § 1983 for the actions of
its subordinates. lvfonell v. Dep't ofSocial Servs., 436 U.S. 658 (1978). To state a claim against
the City, Plaintiff must show that his alleged constitutional injury was inflicted pursuant to a City
policy, regulation, custom, or usage. See lvfonell, 436 U.S. at 690-91. In other words, Plaintiff
must allege facts showing "'a direct causal link between a municipal policy or custom and the
alleged constitutional deprivation."' Castro v. Cly. of Los Angeles, 833 F.3d 1060, I 075 (9th
Cir. 2016) (en bane) (quoting City a/Canton v. Harris, 489 U.S. 378, 385 (1989)). Plaintiff
has not alleged that he was ham1ed because the City had a custom or policy of suppressing First
Amendment rights.
Plaintiff cites one decision in his response, Ahmad v. City ofSt. Louis, No. 4: 17 CV 2455
CDP, 2017 WL 5478410 (E.D. Mo. Nov. 15, 2017). In Ahmad, the district comt granted a
preliminmy injunction that prohibits the City of St. Louis from declaring an assembly unlawful

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unless there is an imminent threat of violence, and from using chemical agents against nonviolent protesters unless the police first warned the protesters and gave them the opportunity to
comply with the warnings. Id. at *18. The district court issued the preliminaiy injunction after
taking testimony from 18 witnesses, and receiving photographic, video, and documentary
evidence, finding that the plaintiffs had been subjected to pepper spray in retaliation for
exercising their First Amendment rights. Unlike the plaintiffs in Ahmad, Plaintiff here has not
alleged that he was directly affected by the police officers' alleged conduct.
CONCLUSION
For the reasons provided above, Defendants' Motion to Dismiss, ECF No. 15, is
GRANTED with prejudice as to Defendant Portland Police Bureau, and without prejudice as to
Defendants Mayor Ted Wheeler and the City of Pmiland. Plaintiff may file an amended
complaint correcting the deficiencies noted in this Order within thitiy days.

Dated this d a y of May, 018.

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