Waters v. Savary et al

Filing 6

ORDER TO DISMISS: IT IS ORDERED that Plaintiff's Complaint 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 shall result in the dismissal of this proceeding. Amended Complaint is due 3/9/2018. Signed on 2/7/2018 by Judge Michael W. Mosman. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CURTIS LEE WATERS,
Case No. 3:17-cv-02042-YY
Plaintiff,
ORDER TO DISMISS

v.
VIRGINIA MEAGHAN SAVARY;
RAYMOND GOSS; SUPERVISOR TONY;
KELLEY BARBER; TYLER DAVIS;
CARISSA PONTENG; SHANE PALLESEN;
SAMUEL CLANDE; CHARLES MICKLEY;
and EDGAR MARTINEZ,
Defendants.
MOSMAN, Judge.
Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983. By Order entered this
date, the Court granted Plaintiff leave to proceed in forma pauperis. However, for the reasons set
forth below, the Court DISMISSES Plaintiffs Complaint.

1 - ORDER TO DISMISS -

BACKGROUND
Plaintiff alleges Defendants violated Plaintiffs free speech and due process rights under the
First, Fourth, and Fourteenth Amendments. Plaintiffs claims appear to arise from actions taken by
employees of the state Children's Protective Services agency. Plaintiffs Complaint is largely
incomprehensible. By way of facts in support of his claim, Plaintiff alleges the following:
Carissa Ponteng - Search & Seizure. Talking to our kids without permission ....
Virginia Savary know lied to get a order "perjury" she violate direct [illegible],
search seizure. Broke our family up an kept interest to her .... "Coercion" violates
1st Am Right etc. Defamation of character, Raymond Goss knows the truth, but
won't go to head people tell truth. Samuel Clande due process keeping my daughter
Peris in foster placement when she can be with family. Shane Pallessen violated my
due process rights because he removed my daughters from my house in Oct. 2016
and didn't get hearing until June 2017 8 month later when the have 24 hr to give
hearing violate Due Process. Tyler Davis - Due Process - withhold key evidence to
cause [illegible] to get fired. 1
By way ofremedy, Plaintiff seeks money damages, public and written letters of apology, and to have
the Defendants reprimanded or fired.

STANDARDS
When a Court grants a Plaintiff leave to proceed in forma pauperis, the Court shall dismiss
the case at any time if the Court determines that:
(B)

the action ...
(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.

1

Incomplete case citations contained in the statement are omitted.

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28 U.S.C. § 1915(e)(2).

DISCUSSION
I.

Procedural Deficiency - Failure to Comply with Rule 8
Plaintiffs Complaint fails to comply with Federal Rule of Civil Procedure 8(a) and 8(d).

Rule 8(a) states:
A pleading that states a claim for relief must contain: ( 1) a short and plain statement
of the grounds for the court's jurisdiction, unless the court already has jurisdiction
and the claim needs no new jurisdictional support; (2) a short and plain statement of
the claim showing that the pleader is entitled to relief; and (3) a demand for the relief
sought, which may include relief in the alternative or different types of relief.
(Emphasis added). Further, Rule 8(d)(l) provides: "Each allegation must be simple, concise, and
direct. No technical form is required." The Court must construe a pro se plaintiffs pleadings
liberally, but a plaintiff must nonetheless allege a minimum factual and legal basis for each claim
that is sufficient to give each defendant fair notice of what the plaintiffs claims are and the grounds
upon which they sit. See, e.g. Brazil v. United States Department ofthe Navy, 66 F.3d 193, 199 (9th
Cir. 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (complaint must give defendants
fair notice of the claims against them).
Ifa plaintiff fails to clearly and concisely set forth allegations sufficient to provide defendants
with notice of which defendant is being sued on which theory and what relief is sought against them,
the complaint fails to comply with Rule 8. McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir.
1996); Nevijel v. Northcoast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). A claim has
"substantial plausibility" if a plaintiff alleges "simply, concisely, and directly [the] events" that
entitle him to damages. Johnson v. City ofShelby, 135 S. Ct. 346, 347 (2014) (per curiam). Failure
to comply with Rule 8 constitutes an independent basis for dismissal of a complaint that applies even
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if the claims in a complaint are not found to be wholly without merit. McHenry, 84 F .3d at 1179;
Nevijel, 651 F.2d at 673. Plaintiffs Complaint does not comply with Rule 8; it does not allege
simply, concisely, and directly the events that entitle Plaintiff to relief in this Court. Accordingly,
the Complaint must be dismissed.

II.

Substantive Deficiencies - Freedom of Speech and Due Process
A.

Right to Free Speech

The First Amendment provides that, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances." U.S. Const. amend. I. Plaintiff has not alleged facts
demonstrating that his religious rights, right to freedom of speech, right to petition the government,
or any other right under the First Amendment were violated by any of the Defendants. Therefore,
Plaintiff fails to state a First Amendment claim.

B.

Due Process Rights

To the extent Plaintiff purports to allege a federal civil rights claim arising from the violation
of his Fourteenth Amendment right to the custody and care of his children, the Supreme Court has
recognized that the Fourteenth Amendment's Due Process Clause protects the liberty interest "of
parents in the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65
(2000); see alsoSantoskyv. Kramer, 455 U.S. 745, 753 (1982)(discussing"the fundamental liberty
interest of natural parents in the care, custody, and management of their child"); Tamas v. Dep 't of
Soc. & Health Services, 630 F.3d 833, 842-43 (9th Cir. 2010) (Fourteenth Amendment's Due
Process Clause protects the liberty interest of a child in state custody from harm by social workers).
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To violate substantive due process, however, a specific defendant "must act with such deliberate
indifference to the liberty interest that their actions 'shock the conscience."' Tamas 630 F.3d 844.
Here, Plaintiff does not allege a simple, concise, and direct statement of a claim that any of the
named Defendants acted with such deliberate indifference in connection with the custody of
Plaintiffs children that their actions "shock the conscience." As such, Plaintiff fails to state a claim
of due process violations upon which relief may be granted under 42 U.S.C. § 1983.
CONCLUSION

Based on the foregoing, IT IS ORDERED that Plaintiffs Complaint 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 shall result in the
dismissal of this proceeding.
IT IS SO ORDERED.

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DATED this D a y of January, 2018.

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United States Chief District Judge

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