Green v. Whetzel et al
Filing
4
Opinion and Order: Plaintiff's complaint 1 is dismissed with leave to amend. Plaintiff is allowed 30 days from the date of this order to file an amended complaint curing the deficiencies identified above, otherwise this action will be dismis sed with prejudice. The Clerk of the Court shall not issue process until further order of this Court. Should plaintiff fail to amend or decide to voluntarily withdraw this action, his filing fee shall be refunded. Signed on 4/11/2016 by Judge Michael J. McShane. (Copy mailed to plaintiff) (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BLISS HEBERLEIN GREEN,
Plaintiff,
v.
Civ. No. 6:16-cv-00575-MC
OPINION AND ORDER
DOUGLAS COUNTY SHERIFF'S
DEPARTMENT et al.,
Defendants.
MCSHANE, Judge:
Plaintiff, a senior citizen of California proceeding pro se, brings this action after having
paid the filing fee. See Compl. ECF No. 1.
Plaintiffs claims surround an encounter with a Douglas County Sheriffs deputy that
occurred while Plaintiff was traveling in Oregon. Plaintiff appears to take issue with (1) the fact
that the deputy did not read him his Miranda rights; (2) the fact that the deputy "attempt[ed] to
force Plaintiff to disclose medical conditions by threatening actions"; and (3) the fact that the
deputy "failed to recognize that Plaintiffs car had a severely under-inflated tire." Compl., ECF
No. 1at3-4.
This Court may dismiss claims sua sponte under FRCP 12(b)(6) for failure to state a
claim upon which relief can be granted. Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th
Cir. 1987) (citations omitted). Upon review, Plaintiffs complaint, ECF No. 1, is DISMISSED
with leave to amend.
1 - OPINION AND ORDER
STANDARD OF REVIEW
"In civil rights cases where the plaintiff appears prose, [this Court] must construe the
pleadings liberally and must afford plaintiff the benefit of any doubt." Karim-Panahi v. L.A.
Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citations omitted). A prose litigant must be
provided "leave to amend his or her complaint unless it is absolutely clear that the deficiencies of
the complaint could not be cured by amendment." Id. (citations and internal quotations omitted).
"Moreover, before dismissing a prose civil rights complaint for failure to state a claim, [this
Court] must give the plaintiff a statement of the complaint's deficiencies." Id.
To survive an assessment under FRCP 12(b)(6) and 28 U.S.C. ยง 1915(e)(2)(B), plaintiff
must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Such facts are presumed true and must constitute
"more than a sheer possibility that a defendant acted unlawfully." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
DISCUSSION
Plaintiffs claims contain deficiencies that nearly meet the high threshold of absolute
clarity that they cannot be cured by amendment.
First, Miranda warnings are required only in situations of custodial interrogation.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Otherwise,
"Miranda leaves the responsibility for keeping a citizen informed of his constitutional rights with
the preeminent guardian of those rights: the citizen himself" United States v. Kilgroe, 959 F.2d
802, 805 (9th Cir. 1992). Plaintiff alleges that his interaction with the deputy took place during a
routine traffic stop in a convenience store parking lot. At one point during the interaction,
Plaintiff "walked away" from the deputy "who then left Plaintiff alone ... and went on his way."
2 - OPINION AND ORDER
Complaint, ECF No. 1 at 3. On its face, this traffic stop does not arise to custodial interrogation
and therefore did not require Miranda warnings. See Berkemer v. McCarty, 468 U.S. 420, 442,
104 S. Ct. 3138, 3152, 82 L. Ed. 2d 317 (1984).
Next, Plaintiff alleges that the deputy threatened to suspend Plaintiffs license in order to
force Plaintiff to disclose his medical conditions. Plaintiff makes no viable claim by asserting
this allegation, and this conversation does not arise to a claim to relief that is plausible on its
face.
Plaintiffs final claim similarly fails. Plaintiff asserts that the deputy failed to identify and
warn of an under-inflated tire which then caused Plaintiff to "not drive straight" and rendered
him unable to "hold a lane" on the highway. Compl., ECF No. 1 at 4. Plaintiff does not identify
any obligation by law enforcement officers to inspect citizen's vehicles and warn them of
potential hazards. Plaintiff again fails to state a claim.
CONCLUSION
For these reasons, Plaintiffs complaint, ECF No. 1, is DISMISSED with leave to amend.
Plaintiff is allowed 30 days from the date of this order to file an amended complaint curing
the deficiencies identified above, otherwise this action will be dismissed with prejudice. The
Clerk of the Court shall not issue process until further order of this Court. Should Plaintiff failed
to amend or decide to voluntarily withdraw this action, his filing fee shall be refunded ..
IT IS SO ORDERED.
DATED this
if
day of April, 2016.
\.-- LMichael J. Mc Shane
United States District Judge
3 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?