Hooper v. North Bend City/Coos-Curry Housing Authorities et al

Filing 57

Order: Plaintiff's Objections 53 are fully considered and granted. The Court orders that the operative pleadings in this case are: Plaintiff's Second Amended Complaint and Memorandum in Support {50], Declaration of Dennis Hopper 44 , and Plaintiff's Second Amended Complaint 45 , together. Plaintiff's state law claims are reinstated. Signed on 1/3/2017 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DENNIS RUSSELL HOOPER,
Plaintiff,

Civ. No. 6:16-cv-00005-MC

v.

ORDER

NORTH BEND CITY/COOS-CURRY
HOUSING AUTHORITIES et al.,
Defendants.
_____________________________
MCSHANE, Judge:
Plaintiff’s Objections to Order and Memorandum (ECF No. 53) is now before this Court.
BACKGROUND
This Court issued an Order (ECF No. 51) on November 23, 2016 finding Plaintiff’s
Second Amended Complaint and Memorandum in Support (ECF No. 50) to be the operative
pleadings in this case. The Court also found that because the Second Amended Complaint (ECF
No. 50) does not allege Actual Notice in compliance with the requirements of the Oregon Tort
Claims Act, Plaintiff’s state law claims were to be dismissed with prejudice.
In response, Plaintiff filed Objections to Order and Memorandum (ECF No. 53), which
this Court receives as Motion to reconsider. Plaintiff’s Objections direct the Court’s attention to
documents he filed captioned “Declaration of Dennis Hooper” (ECF No. 44) and “Second
Amended Complaint and Memorandum in Support” (ECF No. 45). In the document ECF No. 45,
Plaintiff submits that he informed defendant’s employee on March 24, 2014 via telephone that he
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“was preparing for litigation.” Plaintiff also asserts that he informed verbally the Executive
Director for defendant of his intention to commence legal action and that his conversation took
place on June 25, 2014. The Court notes that document ECF No. 45, irrespective of its caption, is
not a complaint and lacks allegations in general.
Documents ECF No. 44 and ECF No. 45 were filed on November 7, 2016, and followed
one week later by a request by Plaintiff for leave to file a Correct Second Amended Complaint
(ECF No. 46) which this Court granted. This Court received Plaintiff’s Second Amended
Complaint (ECF No. 50) as the operative pleadings. The Second Amended Complaint (ECF No.
50) itself does not allege Actual Notice pursuant to the Oregon Tort Claims Act.
DISCUSSION
With that background in mind, plaintiff’s factual assertions that he provided actual notice
to defendants are not newly raised. Plaintiff has previously asserted actual notice, including at
oral arguments heard October 11, 2016 on Defendant’s Motion for summary judgment. What
plaintiff has failed to do is to take those assertions and place them within the pages of his
complaint.
The Court’s oral order on October 11, 2016 provided plaintiff with notice of the
deficiency in his complaint and directed the plaintiff to amend his complaint consistent with the
requirements of the Tort Claims Act. “Before dismissing a pro se complaint the district court
must provide the litigant with notice of the deficiencies in his complaint in order to ensure that
the litigant uses the opportunity to amend effectively.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261
(9th Cir.1992) (citing Noll v. Carlson, 809 F.2d 1446, 1448–49 (9th Cir.1987), superseded on
other grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000)) (en banc).
Plaintiff, instead, provided a supplemental memorandum (ECF No. 45).

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A district court also should not dismiss a pro se complaint without leave to amend unless
“it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”
Schucker v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir.1988) (per curiam) (internal quotation
marks omitted). Here, plaintiff has clearly failed to draft a complete complaint, but the record is
also clear that the deficiencies of the complaint could be cured by amendment. The Court has an
obligation where the plaintiff is pro se to construe the pleadings liberally and to afford the
plaintiff the benefit of any doubt. See, Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985)
(en banc).
ORDER
Plaintiff’s Objections (ECF No. 53) are fully considered, and GRANTED. The Court
orders that the operative pleadings in this case are: Plaintiff’s Second Amended Complaint and
Memorandum in Support (ECF No. 50), Declaration of Dennis Hooper (ECF No. 44), and
Plaintiff’s Second Amended Complaint (ECF No. 45), together. Plaintiff’s state law claims are
reinstated.
IT IS SO ORDERED.
Dated this 3rd day of January, 2017.
____/s/Michael J. McShane_____
Michael J. McShane
United States District Judge

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