Grimm v. City of Portland et al

Filing 17

OPINION AND ORDER: I GRANT Retriever Towing's Motion 7 , and DISMISS Mr. Grimm's claim with prejudice and without leave to amend. Signed on 4/16/18 by Judge Michael W. Mosman. (dls) Modified on 4/16/2018 (dls).

Case 3:18-cv-00183-MO

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

ANDREW GRIMM,

3:18-cv-183-MO

Plaintiff,

OPINION AND ORDER

v.
CITY OF PORTLAND,
L. MCHENRY, F. EARLE,
RETRIEVER TOWING,
Defendant.

MOSMAN, J.,
This matter comes before me on Defendant Retriever Towing’s (“Retriever Towing”)
Motion to Dismiss [7]. For the reasons given below, I GRANT that motion and DISMISS
Andrew Grimm’s pro se claim against Retriever Towing with prejudice and without leave to
amend.1
BACKGROUND
On December 14, 2017, Mr. Grimm parked his car in downtown Portland and, using
Portland’s mobile parking app, paid for a parking spot from 5:41pm to 7:00pm. (Compl. dkt. no.
1 ¶ 25). Mr. Grimm never refilled the meter or moved his car. (Id. ¶ ¶ 30, 31). Over the next

1

I take judicial notice of the fact that Mr. Grimm is a lawyer admitted to the Washington State Bar Association,
WSBA #51486. (Mot. to Dismiss, dkt. no. 7 at 3 n.1). Nevertheless, I applied the less-stringent review standard
because the outcome is the same. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988) (“[P]ro
se pleadings are liberally construed, particularly where civil rights claims are involved.”).

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seven days, Defendants Officers Earle and McHenry issued Mr. Grimm four parking citations,
placing each citation on the exterior of his car’s windshield.2 (Id. ¶¶ 34–37). On December 21,
2017, after Officer Earle attached Mr. Grimm’s fourth citation to the windshield, he contacted
Retriever Towing and ordered it to tow and impound Mr. Grimm’s car. (Id. ¶ 37, 43). Retriever
Towing promptly did so. (Id. ¶¶ 45, 47). Mr. Grimm did not see the citations until after
Retriever Towing towed his car. (Id. ¶¶ 34–37).
After discovering what happened to his car, Mr. Grimm brought this civil rights action
under 42 U.S.C. § 1983 against Retriever Towing, and three other defendants, claiming Retriever
Towing violated his right to due process because he did not receive adequate notice before
Retriever Towing towed his car. (Id. ¶ 183). Retriever Towing now moves to dismiss under
Federal Rule of Civil Procedure 12(b)(6). (Mot. to Dismiss, dkt. no. 7).
LEGAL STANDARD
A court may grant a motion to dismiss “only where there is no cognizable legal theory or
an absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block,
250 F.3d 729, 732 (9th Cir.2001). At this stage, a court usually assumes all factual allegations as
true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Legal conclusions, in contrast, are not entitled
to that assumption. Id.
DISCUSSION
Due process generally requires the government to provide a car owner with notice before
taking his or her car. See Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008).
2

Mr. Grimm violated Portland City Code § 16.20.430-A . (Reply in Supp. of Def. Mot. to Dismiss dkt. no. 16 Ex.
1). § 16.20.430-A provides that:
“It is unlawful for any person to park any vehicle in any parking meter space during the hours of
operation of the meter without paying the parking meter fee, or to permit any vehicle in their
control or custody to remain in any parking meter space longer than the time designated time
limit.”

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However, the government does not need to provide that person with “actual notice” before doing
so. Jones v. Flowers, 547 U.S. 220, 226 (2006); Dusenberry v. United States, 534 U.S. 161, 171
(2002) (“[O]ur cases have never required actual notice.”).
In Sackman v. City of Los Angeles, No. CV 15-0090, 2015 WL 13357951 (C.D. Cal. May
8, 2015), aff'd, 677 F. App'x 365 (9th Cir. 2017), a California district court rejected a claim
similar to Mr. Grimm’s claim. In that case, Ms. Sackman parked her van about a block away
from her home and left for a trip with her husband. Id. at *1. Seventy-two hours after an officer
initially marked the van, another officer cited Ms. Sackman for violating Los Angeles’s
municipal code, leaving the citation on her car’s windshield. Id. Forty-eight hours later the
officer returned to the car, contacted a towing company, and ordered it to tow and impound Ms.
Sackman’s van. Id. The next day, after Ms. Sackman and her husband returned home, her
husband discovered that Los Angeles towed the van. Id. at *2. Ms. Sackman subsequently filed
suit, alleging, among other claims, that Los Angeles violated her right to procedural due process
because it failed to provide adequate notice before towing her car. Id. at *1, *4.
The district court disagreed and dismissed the claim with prejudice and without leave to
amend. Id. at *5. The court found that by leaving a citation on the van’s windshield before
towing the vehicle, Los Angeles provided Ms. Sackman adequate notice. Id. On appeal, the
Ninth Circuit affirmed the lower court’s decision and rejected Ms. Sackman’s contention that
Los Angeles should have done more, like post signs about the seventy-two-hour law, to comport
with due process, stating:
a legislature generally provides the requisite level of notice “simply by enacting
the statute, publishing it, and, to the extent the statute regulates private conduct,
affording those within the statute’s reach a reasonable opportunity to familiarize
themselves with the general requirements imposed and to comply with those
requirements.”

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Sackman, 677 F. App'x at 366 (quoting Lone Star Sec. & Video, Inc. v. City of Los Angeles, 584
F.3d 1232, 1237 (9th Cir. 2017)). The Ninth Circuit additionally concluded, Los Angeles
“provided further pre-towing notice by attaching a citation to Ms. Sackman’s vehicle two days
before it was towed.” Id.
As in Sackman, Mr. Grimm does not dispute that he unlawfully parked his car or that
Officers McHenry and Earle cited him for parking unlawfully. Mr. Grimm contends, rather, that
he should have received better notice––for example, by emailing, calling, or texting him––before
Retriever Towing towed his vehicle. (Mem. in Opp’n to Mot. to Dismiss dkt. no. 15 at 7).
However, due process does not require Mr. Grimm to receive such notice. Defendant City of
Portland (“the City”) is authorized to tow cars that are unlawfully parked.3 In both cases, the
code was enacted, published, and provided each plaintiff a reasonable opportunity to familiarize
themselves with the general requirements imposed and to comply with those requirements.
Accordingly, I find that the City’s code provided Mr. Grimm the requisite level of notice to
satisfy due process.
I also find that Officers Earle and McHenry provided Mr. Grimm adequate notice by
attaching a citation to the windshield, even though Mr. Grimm did not actually see the citation.
See Sackman, 677 F. App'x at 366; Clement, 518 F.3d at 1096 (“Our holding today dovetails
with Scofield, where we held that there was a due process requirement that notice be given—
usually in the form of a ticket placed on the windshield—before police could tow apparently
abandoned vehicles that are otherwise legally parked.”).
3

Portland City Code § 16.30.210(A)(2) provides that:
“A vehicle may be towed and held at the expense of the owner or person entitled to possession
thereof from [a]ny public right-of-way, city owned or operated property, parking lot, public park
or other public place or property, when [t]he vehicle is parked unlawfully or in a manner that may
be hazardous to traffic.”

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Both the Ninth Circuit in Sackman and Retriever Towing rely on Mathews v. Eldridge,
424 U.S. 319 (1976). Sackman applied the balancing test in Mathews to conclude the availability
of post hoc challenges to the citation and tow satisfied due process. While it appears Mathews is
applicable to cases where there is no pre-deprivation notice, I conclude that if applied here, it
would lead to the same result as in Sackman.
Because Mr. Grimm received adequate notice, I GRANT Retriever Towing’s motion and
DISMISS Mr. Grimm’s claim with prejudice because there are no facts that Mr. Grimm can
allege that will cure the deficiencies in his complaint. See Eldridge v. Block, 832 F.2d 1132,
1135–36 (9th Cir. 1987) (“[A] pro se litigant bringing a civil rights suit must have an opportunity
to amend the complaint to overcome deficiencies unless it is clear that they cannot be overcome
by amendment.”).
CONCLUSION
For the reasons given above, I GRANT Retriever Towing’s Motion [7], and DISMISS
Mr. Grimm’s claim with prejudice and without leave to amend.
IT IS SO ORDERED.
16
DATED this ____ day of April, 2018.

/s/ Michael W. Mosman
________________________
MICHAEL W. MOSMAN
Chief United States District Judge

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