Tanner v. Phillips et al
Filing
29
Opinion and Order: Defendants' Motion to Dismiss 16 is GRANTED. Defendants' request for oral argument is DENIED as unnecessary. This case is DISMISSED and all pending motions are DENIED as moot. See formal Opinion and Order. Signed on 10/28/2014 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DANIEL J. TANNER,
dba TANNERITE EXPLOSIVES,
a sole proprietorship,
Plaintiff,
v.
ANITA PHILLIPS, and the
OFFICE OF FIRE MARSHAL,
STATE OF OREGON,
Defendants.
Daniel J. Tanner
36366 Valley Road
Pleasant Hill, OR 97455
Pro se plaintiff
Ellen F. Rosenblum
Tracy J. White
Paul Reim
Attorney General's Office
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for defendants
Page 1 - OPINION AND ORDER
Case No. 3:14-cv-01008-AA
OPINION AND ORDER
AIKEN, Chief Judge:
Defendants Anita Phillips
of
the
State
Fire
Marshal
(~Phillips")
(~Marshal")
and the Oregon Office
move
to
dismiss
pro
se
plaintiff Daniel J. Tanner's complaint. For the reasons discussed
below, defendants' motion is granted and this case is dismissed.
BACKGROUND 1
Plaintiff
is
engaged
in
the
business
of
manufacturing
explosives. At all relevant times, Phillips was a Marshal employee
responsible for permitting decisions. Plaintiff planned a
effects pyrotechnic
Oregon.
Marshal,
Pl.'s
show,"
on July
Supplemental Mem.
denied
plaintiff's
4,
2.
2 012,
in
Phillips,
permit
to
~special
Pleasant Hill,
on behalf of the
produce
the
show.
Specifically, in a letter dated July 3, 2012, the Marshal explained
that
plaintiff
was
not
authorized
to
produce
the
pyrotechnic
explosives display because he "failed to provide the information
needed to allow [defendants] to issue a permit." Pl.'s Supplemental
Mem.
Ex.
D.
Thereafter,
Phillips
notified
the
authorities
in
Pleasant Hill that plaintiff could not proceed with the display.
On June 23, 2014, plaintiff filed a complaint in this Court,
alleging claims under:
(1) 42 U.S.C.
1
§
1983; and (2) state tort law
Plaintiff's complaint contains few factual allegations;
however, both plaintiff and defendants include additional facts
in their briefs. In light of plaintiff's prose status, and for
the sake of judicial efficiency, the Court considers these facts
in evaluating defendants' motion.
Page 2 - OPINION AND ORDER
for reckless interference with economic activity. 2 Plaintiff seeks
$66,000 in economic damages (his fee for the special effects show)
and $100,000 in non-economic damages resulting from physical and
emotional distress. Compl. at pg. 5.
STANDARD OF REVIEW
Where plaintiff "fails to state a claim upon which relief can
be granted," the Court must dismiss the action.
Fed.
R.
Civ.
P.
12(b) (6). To survive a motion to dismiss, the complaint must allege
"enough facts to state a claim to relief that is plausible on its
face." Bell Atlantic Corp. v. Twombly,
For purposes of a motion to dismiss,
550 U.S.
544,
570
(2007).
the complaint is liberally
construed in favor of the plaintiff and its allegations are taken
as true.
Bare
Rosen v. Walters,
assertions,
however,
719 F.2d 1422,
that
amount
to
1424
(9th Cir.
nothing more
1983).
than
a
"formulaic recitation of the elements" of a claim "are conclusory
and not entitled to be assumed true." Ashcroft v. Iqbal, 556 U.S.
662, 681 (2009). Rather, to state a plausible claim for relief, the
complaint "must contain sufficient allegations of underlying facts"
2
Because plaintiff does not articulate a cognizable legal
theory under 42 U.S.C. § 1983, this Court construes his complaint
as alleging deprivation of due process under the Fourteenth
Amendment. This claim does not apply as asserted against the
Marshal because plaintiff failed to allege or argue the existence
of an agency policy, custom, or practice that was the moving
force behind the alleged constitutional violation at issue. Mabe
v. San Bernadino Cnty. Dep't of Pub. Soc. Serv., 237 F.3d 1101,
1111 (9th Cir. 2001).
Page 3 - OPINION AND ORDER
to support its legal conclusions.
Starr v.
Baca,
652 F. 3d 1202,
1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).
DISCUSSION
I. Preliminary Matters
Three preliminary matters must be addressed before reaching
the
substantive
process;
(2)
merits
the
of
statute
defendants'
of
motion:
limitations;
and
( 1)
service
(3)
the
of
proper
defendant pursuant to the Oregon Tort Claims Act (nOTCA").
A. Service of Process
Defendants assert that plaintiff did not effectuate proper
service. Courts apply a nliberal and flexible construction" of the
service rules, particularly where a pro se plaintiff is involved.
Borzeka v. Heckler, 739 F.2d 444, 447
(9th Cir. 1984)
(discussing
an earlier version of Fed. R. Civ. P. 4). A court is not required
to dismiss a complaint for ineffective service of process so long
as n(a) the party that had to be served personally received actual
notice,
(b) the defendant would suffer no prejudice from the defect
in service,
(c)
there is a justifiable excuse for the failure to
serve properly, and (d) plaintiff would be severely prejudiced if
his complaint were dismissed." Id.
Here,
plaintiff's
error
was
technical.
It
is
undisputed
defendants received actual and timely notice of this lawsuit and
were not prejudiced by the defect in plaintiff's service. The Court
therefore
declines
to
dismiss
Page 4 - OPINION AND ORDER
this
lawsuit
due
to
ineffective
service of process. 3
B. Statutes of Limitations
Defendants argue that plaintiff's claims are barred by the
relevant statutes of limitations.
Under the OTCA,
which governs
tort claims asserted against public bodies and their employees, nan
action .
. shall be commenced within two years of the alleged
injury." Or. Rev. Stat.
U.S.C.
§
Oregon.
2004)
§
1983 are subject to a two year statute of limitations in
See Sain v.
City of Bend,
(citing Or. Rev. Stat.
suffered harm on July 4,
23,
30.275(9). Likewise, claims made under 42
2014. As such,
§
309 F.3d 1134,
1139
(9th Cir.
12.110). Plaintiff alleges that he
2012, and he filed this lawsuit on June
his claims are not time barred to the extent
they accrued on or after June 23, 2012.
C. Proper Defendant
Defendants argue that Phillips was improperly named in regard
to plaintiff's state law tort claim.
The Court agrees and finds
that Phillips is not a proper defendant under the OTCA with respect
to
plaintiff's
claim
for
reckless
interference
with
economic
activity because she was acting within the scope of her employment
3
For this reason, plaintiff's second supplemental brief in
opposition, entitled nMotion to Compel Deputy Sheriff Matt
Hingston to Appeal at Oral Argument Hearing, and Request to
Postpone Hearing so he can Attend and Testify to his Service of
Summons," is moot. See Vettrus v. Bank of Am., N.A., 2012 WL
5462914, *4 (D.Or. Nov. 6, 2012) (a case is moot if nthere is
nothing left for this Court to do") .
Page 5 - OPINION AND ORDER
when she engaged in the allegedly wrongful conduct. See Or. Rev.
Stat.
§
30.265
(~the
sole cause of action for any tort of officers,
employees, or agents of a public body acting within the scope of
their employment or duties
.
shall be an action against the
public body only"). Accordingly, this Court construes plaintiff's
state tort claim as asserted solely against the Marshal.
II. Reckless Interference with Economic Activity
Plaintiff alleges that defendants recklessly interfered with
his economic activity by refusing to allow him to conduct a Fourth
of July pyrotechnic display. Plaintiff's claim fails as a matter of
law for two reasons.
First,
a party asserting a state law tort
claim against a public officer or body is required to file notice
within 180 days of the alleged loss or injury. Or.
30.27 5 (2) .
According
to
plaintiff,
he
provided
Rev.
two
Stat.
tort
§
claim
notices to defendants. See Pl.'s Resp. to Mot. Dismiss Exs. A, B.
The first alleged notice inheres to a separate injury addressed in
a previous proceeding, which was resolved on June 16, 2012, well
before this litigation began. Defs.' Reply to Mot. Dismiss 2; Pl.'s
Resp. to Mot. Dismiss Ex. A. The second purported notice was filed
on June 20,
2014,
almost two years after the alleged injury and
therefore beyond the time allowed under Or. Rev. Stat.
§
30.275.
Pl.'s Resp. to Mot. Dismiss Ex. B.
Second, the Eleventh Amendment
~bars
suits in federal court
[for damages] against a state and its agencies brought by its own
Page 6 - OPINION AND ORDER
citizens and citizens of other states." In re Jackson,
1046, 1049
(9th Cir. 1999)
184 F.3d
(citations omitted). The Marshal is a
political subdivision of the State of Oregon and has not consented
to suit. Defs.' Mem. in Supp. of Mot. Dismiss 8; see also Pennhurst
State Sch. & Hasp. v. Halderman, 465 U.S. 89, 100-01 (1984)
(state
may waive its sovereign immunity under the Eleventh Amendment by
expressly consenting to suit). As noted previously, the Marshal is
the proper defendant
monetary relief.
for plaintiff's state law tort
claims
for
Plaintiff's reckless interference with economic
activity claim is not cognizable pursuant to either the OTCA or the
Eleventh Amendment.
Defendants'
motion to dismiss is granted in
this regard.
III. 42 U.S.C.
§
1983
Plaintiff alleges that Phillips violated his constitutional
rights by denying him a permit for a Fourth of July pyrotechnic
explosives display. To state a claim pursuant to 42 U.S.C.
the plaintiff must allege that:
color of state law,
(1)
the defendant,
§
1983,
acting under
deprived him of an established statutory or
constitutional right; and (2) qualified immunity does not attach.
Pearson v. Callahan, 555 U.S. 223, 236 (2009). Qualified immunity
shields "government officials performing discretionary functions .
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of
which
a
reasonable
person
Page 7 - OPINION AND ORDER
would
have
known."
Harlow
v.
Fitzgerald, 457 U.S. 800, 818 (1981). Qualified immunity therefore
protects "all but the plainly incompetent or those who knowingly
violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
Initially,
plaintiff's 42 U.S.C.
1983 claim fails at the
§
pleadings level. Plaintiff's allegations are vague, conclusory, and
void
of
factual
supplemental
support,
briefs.
even
considering
Specifically,
his
plaintiff's
response
complaint
and
fails
because it does not "contain sufficient allegations of underlying
facts" to support his legal assertions. Starr,
652 F.3d at 1216.
Plaintiff merely concludes that his right to perform pyrotechnic
demonstrations is governed by "federal law, namely 18 USCS Section
841 (h) (m) (n)
and
Supplemental
Mem.
the
2.
doctrine
Yet
of
federal
plaintiff's
supremacy."
right
to
manufacture
explosives as a controlled substance pursuant to 18 U.S.C.
and 18 U.S. C.
§
8 41 (h) ( 3)
use
of
such explosives
public Fourth of July display or denied him a
under state law. Or. Rev. Stat.
or
substance,
or
§
843
§
is immaterial to the issue of whether
defendants properly regulated his
Laws 2013, ch. 24,
Pl.'s
§
480.110
(2012,
in
a
fireworks permit
repealed by Or.
13) ("any combustible or explosive composition
any
combination
of
such
compositions
or
substances, or any other article which was prepared for the purpose
of providing a visible or audible effect by combustion, explosion,
deflagration, or detonation"). Similarly, the "doctrine of federal
supremacy" does not preclude the state from controlling plaintiff's
Page 8 - OPINION AND ORDER
pyrotechnic demonstrations because there is no conflict of laws. In
other words, even accepting that plaintiff is federally licensed to
manufacture explosives,
regulating
the
use
he still must comply with Oregon's laws
and
sale
of
fireworks
when
employing
his
explosives in a public pyrotechnic display. See Or. Rev. Stat. §§
480.110, 480.120(1) (b)
(2012); see also Or. Rev. Stat.§§ 480.111,
480.120(1) (b), 480. 130 (2014).
The
Court
finds
that
Phillips
reasonably
interpreted
the
statutory definition of fireworks to include the explosives used by
plaintiff in this context. Without a precise description of the
composition
statutory
of
plaintiff's
definitions
explosives,
are
it
implicated.
is
not
Regardless,
clear
which
plaintiff's
explosives, when used in a public pyrotechnic display, qualify as
fireworks under Oregon law, such that a permit is required. It is
undisputed that plaintiff did not obtain a fireworks permit because
he failed to provide defendants with the requisite information.
Thus,
Phillips'
decision
to
prohibit
plaintiff
from
his
pyrotechnic demonstration when he did not have a permit from the
Marshal was neither a violation of his clearly established rights
nor
unreasonable.
immunity.
Phillips
Defendants'
is
motion
therefore
to
entitled
dismiss
is
to
qualified
granted
as
to
plaintiff's 42 U.S.C. § 1983 claim.
CONCLUSION
Defendants'
Motion
Page 9 - OPINION AND ORDER
to
Dismiss
(doc.
16)
is
GRANTED.
Defendants'
request for oral argument is DENIED as unnecessary.
This case is DISMISSED and all pending motions are DENIED as moot.
IT IS SO ORDERED
Dated this
25{
of October 2014.
Ann Aiken
United States District Judge
Page 10 - OPINION AND ORDER
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