Sharipoff v. Myers et al

Filing 58

Opinion and Order: The Court grants Defendants' Motion to Dismiss (ECF No. 54 ) with prejudice and denies Defendants' motion for pre-filing order (ECF No. 54 ). Defendants' first Motion to Dismiss (ECF No. 37 ) is denied as moot. Signed on 1/30/2020 by Magistrate Judge Mustafa T. Kasubhai. (Mailed to Pro Se party on 1/30/2020.) (jk)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION

ISAACKY GAVRILOVICH SHARIPOFF
Plaintiff,

Case No.: 6:18-cv-01659-MK
OPINION AND ORDER1

v.

JASON MYERS, Sheriff; RAMSEY, Deputy;
SOPHIE POLONSKY, Deputy; OFFICER
WHITTAKER, Deputy; C. CRITES, Deputy;
CRISAFULLI VELAZQUEZ or DOMINICK,
Deputy

RE: DEFENDANTS’ MOTION TO
DISMISS PLAINTIFF’S AMENDED
COMPLAINT AND MOTION FOR PREFILING ORDER

Defendants.

KASUBHAI, Magistrate Judge:
Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint and
Motion for Pre-Filing Order. ECF No. 54. For the reasons set forth below, the Court GRANTS
Defendants’ Motion to Dismiss (ECF No. 54) and DENIES Defendants’ Motion for a Pre-Filing
Order (ECF No. 54).

1

Under Standing Order 06-mc-9130, the parties consented to full jurisdiction by a U.S. Magistrate Judge.
ECF No. 57.

PAGE 1—OPINION AND ORDER

BACKGROUND
In the Complaint filed September 12, 2018, pro se Plaintiff alleged that he was detained
in the Marion County jail in Salem, Oregon from December 1, 2017 to February 27, 2018.
Compl. 2, ECF No. 1. Plaintiff alleged that Defendants conspired, discriminated against him for
his Russian heritage, tortured him, and that he was helpless. Id. at 2-3. Specifically, Plaintiff
alleged that Deputies Whittaker, Velasquez, Crites, and Polonsky entered his cell at 4:00 a.m.
one morning and ordered him to remove his clothes and “show them [his] private parts.” Id. at 2.
Plaintiff refused and Defendants then inflicted “injury, damage, pain and suffering including
mental anguish and nightmares.” Id. Plaintiff further alleges that during his incarceration he tried
to use grievance procedures to complain about his treatment, but his documents were stolen. Id.
Plaintiff filed a “TORT CLAIM petition” for redress of his grievances upon release from jail. Id.
Plaintiff claims that he suffers ongoing pain, and that “there is total negligence and deliberate
indifference” and “misuse and abuse of power[.]” Id. at 3. Plaintiff prayed for an unspecified
amount of compensation. Id. Although the Complaint alleged some facts supporting various
potential legal theories, Plaintiff failed to identify a cause of action. See generally, Compl., ECF
No. 1.
Defendants’ in their Answer, filed January 16, 2019, denied the substance of Plaintiff’s
allegations and asserted then affirmative defenses. Answer ¶¶ 6-16, ECF No. 21. Plaintiff
responded to Defendants’ Answer with a single-spaced 14-page document titled “Brief in
Support of Complaint,” on February 19, 2019. ECF No. 32. Plaintiff attached several exhibits to
his Brief, including medical bills allegedly incurred as a result of the deputies’ abuse of Plaintiff,
and brief medical records. Id. Ex. 1-2, A1-5. Essentially, Plaintiff’s brief is strewn with
allegations that might, if more completely alleged, be sufficient for a number of both

PAGE 2—OPINION AND ORDER

Constitutional and tort claims. Those allegations, however, are scattered throughout several
documents, including the Complaint, and are not possible to adequately evaluate.
Defendants filed a Motion to Dismiss Plaintiff’s Complaint on April 10, 2019. ECF No.
37. Plaintiff filed a document in response to the Motion to Dismiss, which he titled “Notice to
defendants in reply to documents dated April 10, 2019.” ECF No. 39. Defendants then filed a
Reply, describing Plaintiff’s response as non-responsive to legal arguments made in the Motion
to Dismiss. Defs.’ Reply 2, ECF No. 40.
Plaintiff subsequently filed a “Notice of Default.” ECF No. 41. Defendants responded
with a Motion to Strike Notice. ECF No. 42. Before the Court could rule on Defendants’ Motion
to Strike, Plaintiff filed a “Second Notice of Default.” ECF No. 43. Plaintiff then filed a
document called “Affidavit of Truth.” ECF No. 44. Defendants filed a second Motion to Strike in
response, arguing again that Plaintiff has no authority to issue a Notice of Default. Mot. Strike
(2) 1, ECF No. 45.
On July 18, 2019, this Court entered an Order granting Defendants’ two Motions to
Strike, issuing a stay on Defendants’ Motion to Dismiss, and construing Plaintiff’s “Affidavit of
Truth” and “Brief in Support of Complaint” as Plaintiff’s Motion for Leave to File an Amended
Complaint. Order 1, ECF No. 46. The Court granted leave to amend and requested pro bono
counsel be assigned to represent Plaintiff. Id. The Court subsequently entered two separate
orders that appointed pro bono counsel to Plaintiff and granted Plaintiff’s Unopposed Motion for
Extension of Time to File Pro Bono Appointment Response Form. ECF Nos. 47 and 48.
However, because Plaintiff refused contact from counsel after counsel’s repeated attempts to
establish contact with Plaintiff by telephone and mail, the appointed counsel requested that the
Court terminate his appointment. Pl.’s Pro Bono Appointment Response, ECF. No. 51. The

PAGE 3—OPINION AND ORDER

Court entered an Order terminating counsel’s appointment to Plaintiff on September 4, 2019.
ECF No. 52.
On October 3, 2019, Plaintiff, acting pro se, filed an “Amendment to Complaint and
Demand.” Am. Compl., ECF No. 53. In the Amended Complaint, Plaintiff does not allege any
new or material facts and fails to identify a cause of action. Id. Plaintiff adds that “[a]ll
Affidavits of Truth ab- initio, All Affidavits of Service are hereby restated in their entirety, and
incorporated herein, as if set forth in full (unrebuttable and unrebutted).” Id. at ¶ 8. Plaintiff also
adds that he seeks equitable and declaratory relief. Id. at ¶ 7.
Moreover, Plaintiff “added and incorporated” into the “Original Complaint and
Demand,” a “JHON [sic] DOE” as a Defendant. Id at 3. Although the Amended Complaint’s
caption names “Jason Myers, et, al,” as “Defendants,” Plaintiff does not expressly identify any
other defendant besides Myers in the caption. Id. at 1. While Plaintiff attaches nine exhibits to
his Amended Complaint, the exhibits’ relationship to the Amended Complaint are difficult to
decipher. See ECF No. 53-1.
In Exhibit A, Plaintiff lists Deputies Larson, Whitaker, Velasquez, Crisafulli, Crites, and
Polonsky as “assault deputies.” Id. at Ex. A 1, ECF No. 53-1. He lists Sheriff Myers, Deputy
Sergeant Ramsey, and thirteen other law enforcement officers are the names of “conspirators.”
Id. at Ex. A 1-2. Plaintiff names other deputies and police officers as “conspirators arresting
officers” and Marion County Commissioners as “direct and or indirect conspirators.” Id. at Ex. A
2-3. Furthermore, Plaintiff names Marion and Lane County Circuit Court judges as “conspirator
judges and prosecutors,” and the United States, State of Oregon, Marion County, and the City of
Salem as “corporations and sub-corporations.” Id. at Ex. A 3. Plaintiff attaches as Exhibit D his
progress notes as a patient in Salem Hospital. Id. at Ex. D. The remaining exhibits labeled B, C1,

PAGE 4—OPINION AND ORDER

C2, C3, and E are copies of court documents (in which Plaintiff was a plaintiff) for Lane County
Case Number 17SC47301 and copies of the judicial oaths of office for Marion and Lane County
Circuit Court judges. Id. at Exs. B, C, and E.
Defendants filed a second Motion to Dismiss and a Motion for Pre-Filing Order. Defs.’
Mots., ECF. No. 54. In their motion, Defendants request that Plaintiff’s Amended Complaint be
dismissed. Id. at ¶¶ III-V. Defendants also move the Court to enter an order declaring Plaintiff a
vexatious litigant and prohibiting Plaintiff from filing future legal claims against Marion County
and its employees without obtaining leave from the Court. Id. at ¶ VI.
LEGAL STANDARD
I. Motion to Dismiss Under Federal Rules of Civil Procedure 12(b)(6)
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual
allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629
F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint
“may not simply recite the elements of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from
the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office
Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the

PAGE 5—OPINION AND ORDER

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation
marks omitted).
A well-pleaded complaint requires only “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A federal claimant is not required to
detail all factual allegations; however, the complaint must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citations omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level.” Id. While the court must assume that all facts alleged
in a complaint are true and view them in a light most favorable to the nonmoving party, it need
not accept as true any legal conclusion set forth in the complaint. Iqbal, 556 U.S. at 678.
Pro se plaintiffs receive special dispensation. A court must liberally construe the filings
of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her
complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by

PAGE 6—OPINION AND ORDER

amendment.” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988).
(citation and quotation marks omitted). But even a pro se plaintiff must offer more than “‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. 555).
II. Motion for Pre-filing Order Declaring a Vexatious Litigant
The Ninth Circuit explained that “[f]lagrant abuse of the judicial process cannot be
tolerated because it enables one person to preempt the use of judicial time that properly could be
used to consider the meritorious claims of other litigants.” De Long v. Hennessey, 912 F.2d 1144,
1148 (9th Cir. 1990). Under federal law, the court is instructed to consider “both the number and
content of the filings as indicia of the frivolousness of the litigant’s claims.” Id. “The plaintiff’s
claims must not only be numerous, but also be patently without merit.” Moy v. United States, 906
F.2d 467, 470 (9th Cir. 1990). Therefore, prior to declaring litigant “vexatious,” the court must:
(1) provide the litigant notice and a chance to be heard; (2) create an adequate record for review;
(3) make substantive findings as to the frivolous or harassing nature of the litigant’s actions; and
(4) ensure any pre-filing order is “narrowly tailored to closely fit the specific vice encountered.”
Id. at 1147-48; Molski v. Evergreen Dynasty Corp., 500 F.3d at 1057.
Though the first two requirements are procedural, the latter two are substantive, and a
“separate set of considerations” may provide a “helpful framework” in “applying the two
substantive factors.” Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057, 1062 (9th Cir.
2014) (citation omitted). These substantive considerations are: “(1) the litigant’s history of
litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the
litigant’s motive in pursuing the litigation, e.g., does the litigant have an objective good faith
expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the

PAGE 7—OPINION AND ORDER

litigant has caused needless expense to other parties or has posed an unnecessary burden on the
courts and their personnel; and (5) whether other sanctions would be adequate to protect the
courts and other parties.” Molski, 500 F.3d at 1058 (quoting Safir v. U.S. Lines, Inc., 792 F.2d
19, 24 (2d Cir. 1986)).
DISCUSSION
I. Defendants’ Motion to Dismiss
Defendants bring their second motion to dismiss on three grounds.2 They argue that
Plaintiff: (1) fails to state a claim upon which relief can be granted; (2) lacks subject matter
jurisdiction; and (3) fails to exhaust administrative remedies. The Court addresses the arguments
in turn.
A. Sufficiency of Plaintiff’s Allegations
Federal Rules of Civil Procedure Rule 8 requires a plaintiff to allege “a short and plain
statement of the claim showing the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Courts
should dismiss complaints that are excessively “verbose, confusing, and . . . conclusory.” Nevijel
v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981). Rule 8 “has been held to be violated
by a pleading that was needlessly long, or a complaint that was highly repetitious, or confused,
or consisted of incomprehensible rambling.” Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
1047, 1059 (9th Cir. 2011) (citation and quotations marks omitted). A complaint is not subject to
dismissal for noncompliance with Rule 8 due to length or excessive detail alone. Hearns v. San
Bernardino Police Dep’t, 530 F.3d 1124, 1131-32 (9th Cir. 2008). However, a court may dismiss
a complaint under Rule 8 if it does not allow the defendant sufficient notice of the factual basis
of the plaintiff's claim. Id. at 1130.
Because Plaintiff filed an Amended Complaint, the Court denies Defendants’ first Motion to Dismiss
(ECF No. 37) as moot.
2

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The Court is cognizant of Plaintiff’s pro se status and liberally construes Plaintiff’s
Amended Complaint. The Court construes Plaintiff’s Amended Complaint to include Plaintiff’s
original Complaint and other filings. Even construed liberally, Plaintiff’s Amended Complaint
lacks the bare minimum factual allegations from which this Court can determine whether
Plaintiff has adequately pleaded any claim. Although the Court considered the facts Plaintiff
alleged in his “Affidavit of Truth,” Plaintiff failed to cure the deficiencies of his original
Complaint. Plaintiff’s Amended Complaint is still devoid of any legal theory or claim, and as
previously noted, contains no new alleged facts. Accordingly, Plaintiff fails to state a claim
against Defendants. The Court does not reach any of Defendants’ remaining arguments.
Defendants’ Motion to Dismiss is granted.
B. Futile to Amend
A district court may, within its discretion, deny a motion to amend “due to undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, [and] futility of the amendment.” Zucco Partners, LLC v. Digimarc Corp., 552
F.3d 981, 1007 (9th Cir. 2009) (alteration in original) (quoting Leadsinger, Inc. v. BMG Music
Publ’g, 512 F.3d 522, 532 (9th Cir. 2008)). “Not all of the factors merit equal weight. As this
circuit and others have held, it is the consideration of prejudice to the opposing party that carries
the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.
2003). Futility of amendment, “can, by itself, justify the denial of a motion for leave to amend.”
Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
Considering Plaintiff’s pro se status, this Court previously granted Plaintiff leave to
amend. Further, in considering Plaintiff’s Amended Complaint, the Court allowed Plaintiff to

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incorporate his earlier filings and construed them as part of his Amended Complaint.
Additionally, in the interest of judicial efficiency, the Court appointed Plaintiff with pro bono
counsel. However, Plaintiff refused counsel’s attempt to establish contact, and as a result, pro
bono counsel asked this Court to terminate his appointment. Despite this Court’s expressive
instruction to “comply with all rules of federal procedure and local rules in filing court
documents,” Plaintiff’s continued unwillingness or inability to comply with the Court’s
instructions are given great weight. Moreover, given that over two years have passed since the
alleged events in this case, the Court finds that Defendants suffer prejudice as a result of fading
memories, stale evidence, and potential unavailability of witnesses. As in Plaintiff’s Complaint,
his Amended Complaint failed to state a claim against Defendants. Given Plaintiff’s two
attempts to file a complaint, his refusal of pro bono assistance, and failure to follow the Court’s
Order that Plaintiff comply with all Federal Rules of Civil Procedure, it would be futile to grant
Plaintiff another opportunity to amend. The Court dismisses this case with prejudice.
II. Defendants’ Motion for Pre-filing Order
Defendants also move for an order declaring Plaintiff as a vexatious litigant and
prohibiting him from filing future actions against Marion County and its employees without prior
approval by the Court. Defs.’ Mot. Dismiss 6-13, ECF. No. 54.
A. Notice
In De Long, the Ninth Circuit held that the district court must provide litigant notice and
a chance to be heard before the pre-filing order is entered. De Long, 912 F.2d at 1147. Here,
Defendants provided Plaintiff with their motion for a pre-filing order. Defs.’ Mot. Dismiss, ECF
No. 54. Defendants also requested oral argument in their motions for the purpose of allowing

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Plaintiff an opportunity to be heard before the Court.3 Id. Consequently, Plaintiff had the
opportunity to respond to Defendants’ motion both in writing and at a hearing but failed to do so.
Therefore, this Court finds that Plaintiff had sufficient notice of this motion and an opportunity
to be heard.
B. Adequate Record for Review of Plaintiff’s Actions
Defendants contend that Plaintiff has a “history of abusing litigation from the outset of
this action.” Id. at 7. Before entering a pre-filing order, the district court must compile “an
adequate record for review.” De Long, 912 F.2d at 1147-48. An “adequate record for review”
includes a listing of all cases and motions filed by litigant to show that litigant’s activities were
numerous or abusive. Id. at 1147.
In the District of Oregon, Plaintiff has filed only this case against Defendants. And, in
this case, Plaintiff amended his complaint with leave from the Court (ECF No. 53) and filed two
separate notices of default (ECF Nos. 41 and 43). Subsequently, the Court granted Defendants’
two Motions to Strike (ECF No. 42 and 45). Defendants contend that Plaintiff’s “pleading
practices” in this case and the three cases filed in the State of Oregon: (1) Lane County Case
Number 17SC47301; (2) Marion County Case Number 14C47159; and (3) Marion County Case
Number 17CR79985, show Plaintiff’s intent to use the judicial system to unduly burden Marion
County and its employees. Defs.’ Mot. Dismiss 8, ECF. No 54. However, the Court finds that the
three cases filed in Oregon State Court arise from separate and distinct legal issues. Lane County
Case Number 17SC47301 is a small claims suit filed against Marion County and its employee by
Plaintiff. Defs.’ Mot. Dismiss, Ex. 101, ECF. No. 54-1. Marion County Case Numbers

3

Under LR 7.1(d)(1), the Court finds this motion appropriate for disposition without oral argument and
denies the request.

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14C47159 and 17CR79985, are both criminal proceedings filed against Plaintiff by the State of
Oregon. Id. Exs. 102 and 103, ECF Nos. 54-2 and 54-3.
The Court finds that Plaintiff’s conduct does not rise to a level suggesting that Plaintiff is
abusing the judicial system. Because Plaintiff does not have a lengthy history of filing frivolous
or harassing litigation, the Court denies Defendants’ motion for a pre-filing order.
CONCLUSION
For the reasons stated above, the Court grants Defendants’ Motion to Dismiss (ECF No.
54) with prejudice and denies Defendants’ motion for pre-filing order (ECF No. 54). Defendants’
first Motion to Dismiss (ECF No. 37) is denied as moot.
IT IS SO ORDERED.
DATED this 30th day of January 2020.

s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge

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