Kohler v. City of Eugene et al
Filing
19
OPINION AND ORDER: Defendant's motion to dismiss 12 is granted in part and denied in part. Plaintiff's claims against the City of Eugene and the City Prosecutor are DISMISSED. Within thirty (30) days from the date of this Order, plaintiff shall file a second amended complaint and name the officers identified in his prior complaints as defendants in the caption. Plaintiff is advised that failure to file an amended complaint as ordered will result in the dismissal of this proceeding. Plaintiff's motions for continuance, evidentiary hearing, and discovery 14 17 are denied. Copy of OPINION AND ORDER sent to Pro Se Plaintiff. Signed on 7/22/2015 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KASHON NATHANIEL KOHLER,
Case No. 6:14-cv-01879-AA
OPINION AND ORDER
Plaintiff,
v.
CITY OF EUGENE ET AL,
Defendant.
AIKEN, Chief Judge:
Plaintiff,
negligence,
appearing
battery,
pro
alleges
se,
of
deprivation
excessive
process,
due
force,
public
humiliation, and defamation of character. Pl. Amend. Compl. 3-4.
On
May
26,
2015,
Defendant
Plaintiff's Amended Complaint for
which relief may be granted.
light most
in
the
complaint
favorable
1 - OPINION AND ORDER
to
the
as
a
failure
See Fed.
considering a motion to dismiss,
allegations
filed
R.
motion
to state a
Ci v.
P.
to
dismiss
claim for
12 (b) ( 6) . When
a court must accept all factual
true
and
construe
non-moving party.
them
in
See Ashcroft
a
v.
Iqbal,
566 U.S.
662,
678
(2009). To survive a motion to dismiss
a complaint must contain sufficient facts,
if accepted as true,
to
on
state
a
(quotations
less
claim
omitted) .
stringent
liberally but
pled.
that
768
standard,
in
its
pro se litigants
which
a
court
Pardus,
F.3d 1237,
1241
551 U.S.
89,
(9th Cir.
face."
Id.
are held to
views
supply essential elements
See Erickson v.
Harris,
"p~ausible
Further,
standard
cannot
is
the
of a
a
pleading
claim not
94
(2007); Litmon v.
2014).
Pursuant to this
Defendant's motion is granted in part
and denied in
part.
Discussion
Plaintiff's claims arise from an incident on May 30,
2014,
when he was allegedly "tackled."
Defendant argues that Plaintiff's state law claims against
the Eugene Police Department and the City Prosecutor should be
consolidated because the proper defendant is the City of Eugene.
Defendant further argues that Plaintiff failed to plead adequate
tort
claim notice
under Or.
torts caused by officers,
Rev.
Stat.
employees,
§30. 27 5.
I
agree.
All
or agents of a public body
acting within the scope of their employment constitute actions
under Or. Rev. Stat. § 30.260-.300, which restiicts liability to
"public bodies." Or.
Rev.
Stat.§ 30.265. All causes of action
in tort, "a breach of a legal duty ... imposed by law, other than a
duty arising from contract or quasi-contract," generally require
2 - OPINION AND ORDER
notice
days
of
such
after
the
30.275(2)(b).
Plaintiff
claims
to
alleged
the
loss
Plaintiff's
fails
to
offending public body within
or
injury.
claim
allege
or
See
arose
on
Or.
Rev.
May
establish that
18 0
Stat.
§
30,
gave
notice
upon
he
2014,
and
diversity
to
the Defendant satisfying §30.275.
Defendant
contends
that
jurisdiction and therefore
Plaintiff
does
not
necessarily allege
for excessive force under 42 U.S.C.
the
Plaintiff's
complaint
intended to assert a
nonetheless
because
Plaintiff
policy
or
U.S.C.
§
658,
argues
1983.
690-91
government
responsible
his
However,
find
§1983
claims
to
properly
establish
v.
an
allegation
deprivation
agree.
original
or
of
Plaintiff
Defendant
dismissed
an
official
liability
of
of the
Soc.
§
1983
under
Servs.,
action
that
official
rights
makes
amended complaint
436
such
and does
42
U.S.
against
policy
protected
no
claim
Plaintiff
be
allege
a
construing
that
should
municipal
Dep't.
touchstone
a
I
I
any
Monell
is
for
Constitution.") .
within
to
(" [T] he
body
liberally,
failed
has
See
§ 1983.
federal claim pursuant to §1983.
that
custom
relies
by
a
is
the
allegations
not
state
a
claim against the City of Eugene.
However,
as
defendants
Plaintiff
in
the
named
original
the
individual
complaint.
See
officers
Pl.
involved
Compl.
at
3.
Despite not naming these officers in the caption of his Amended
Complaint,
Plaintiff
3 - OPINION AND ORDER
identified
Officer
Ware,
individually,
within his factual allegations in support of his excessive force
claim.
See
pl'eading
Pl.
Amend.
Compl.
afforded~
standards
At
3.
to
Because
pro
se
of
the
litigants
liberal
and
the
discretion provided to this court,
Plaintiff is granted 30 days
leave
properly
to
amend
his
complaint
to
name
the
relevant
officers as defendants.
Conclusion
For the reasons above,
12)
Defendant's motion to dismiss
is granted in part and denied in part.
against
the
City
of
Eugene
DISMISSED. Within thirty
plaintiff
shall· file
a
(30)
and
the
Plaintiff's
City
(doc.
claims
Prosecutor
are
days from the date of this Order,
second
amended
complaint
and
name
the
officers identified in his prior complaints as defendants in the
caption.
Plaintiff is
complaint
proceeding.
as
ordered
advised that
failure
will
in
Plaintiff's
result
motions
for
the
to
Dated this~ day of July, 2015.
Ann Aiken
U.S. District Judge
4 - OPINION AND ORDER
an amended
dismissal
continuance,
hearing and discovery (docs. 14, 17) are denied.
IT IS SO ORDERED.
file
of
this
evidentiary
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