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O'Callaghan v. City of Portland

United States District Court, Ninth Circuit

October 29, 2013

MICHAEL O'CALLAGHAN, Plaintiff,
v.
CITY OF PORTLAND; MULTNOMAH COUNTY SHERIFF; WESTSIDE COMMUNITY COURT; CITY OF PORTLAND HEARINGS OFFICER GREGORY FRANK; DIRECTOR KURT NELSON, CITY PARKS; MARK PALMITER, PORTLAND POLICE OFFICER JOHN DOE, Defendants.

MICHAEL O'CALLAGHAN P.O. Box 3321 Portland, OR. Plaintiff, Pro Se

JAMES H. VAN DYKE, City Attorney, JAMES G. RICE, Deputy City Attorney, City of Portland Portland, OR. Attorneys for Defendants City of Portland, Kurt Nelson, Gregory Frank, and Mark Palmiter

JENNY M. MADKOUR, Multnomah County Counsel, DAVID N. BLANKFELD, Assistant County Counsel, Portland, OR. Attorneys for Defendant Multnomah County Sheriff.

OPINION AND ORDER

ANNA J. BROWN, District Judge.

This matter comes before the Court on Defendant Multnomah County Sheriff's Motion (#101) to Dismiss Plaintiff's Second Amended Complaint Pursuant to FRCP 12(b)(1) and (6) and Plaintiff's Motion (#108) to Vacate Sentence and Judgment.

For the reasons that follow, the Court GRANTS Defendant's Motion and DENIES Plaintiff's Motion.

BACKGROUND

On February 3, 2012, Plaintiff Michael O'Callaghan filed a pro se Complaint pursuant to 42 U.S.C. § 1983 against the City of Portland, the Multnomah County Sheriff, Westside Community Court, Judge Evans, Judge Blank, Gregory Frank, Kurt Nelson, Portland Police Officer Palmiter, and three John Doe Portland police officers. Plaintiff's Complaint consisted of a lengthy narration of numerous contacts that Plaintiff had with Portland police officers and various legal proceedings from May 2009 through December 2011. Plaintiff did not identify the specific state or federal laws or provisions of the United States Constitution that Defendants allegedly violated.

On June 12, 2012, Defendant Multnomah County Sheriff filed a Motion to Dismiss Plaintiff's claims against him.

On January 16, 2013, the Court issued an Opinion and Order granting Multnomah County Sheriff's Motion to Dismiss on the grounds that (1) to the extent that Plaintiff sought to allege state-law claims against the Multnomah County Sheriff, Plaintiff failed to allege that he provided timely notice as required by the Oregon Tort Claims Act (OTCA); (2) to the extent that Plaintiff alleged state-law claims against the Multnomah County Sheriff, the proper Defendant would have been Multnomah County; and (3) Plaintiff failed in his Complaint to set out any factual allegations specifically related to the Multnomah County Sheriff. The Court granted Plaintiff leave to file an amended complaint to cure the deficiencies as to his claims against the Multnomah County Sheriff.

On February 6, 2013, Plaintiff filed a Motion to Amend, which was a narrative of assorted allegations against "parks employees, " unnamed Multnomah County Sheriff's deputies, Portland City Parks Director Kurt Nelson, and "PPB Palmiter." Plaintiff asserted (1) various Notices of Compliance allegedly issued to Plaintiff constituted bills of attainder; (2) Plaintiff was deprived of property in violation of his right to due process; and (3) the Westside Community Court "is nothing more than a free slave system for the Portland business alliance to clean up downtown & the Pearl [and] it preys on the homeless for livability crimes with no authority of law, in secret."

On February 27, 2013, the Court construed Plaintiff's Motion to Amend as Plaintiff's Amended Complaint.

On March 13, 2013, the Multnomah County Sheriff filed a Motion to Dismiss Plaintiff's claims against him on the grounds that Plaintiff failed to provide him with Tort Claim Notice within 180 days of Plaintiff's alleged injury and Plaintiff fails to allege specific facts that state a claim against him.

On July 11, 2013, the Court issued an Opinion and Order in which it granted the Multnomah County Sheriff's Motion to Dismiss. The Court noted it had previously advised Plaintiff as to the notice requirement of the OTCA, but Plaintiff again failed to allege that he provided the Multnomah County Sheriff with notice as required under the OTCA. The Court, therefore, dismissed Plaintiff's state-law claims against the Multnomah County Sheriff without leave to replead. The Court also noted Plaintiff's Amended Complaint did not contain any factual allegations specifically related to acts of the Multnomah County Sheriff with respect to Plaintiff's claims for violation of his rights under the Fourth and Fifth Amendments and/or § 1981. Plaintiff, however, alleged in his Response to the Multnomah County Sheriff's Motion to Dismiss that on February 7, 2011, unnamed Deputy Sheriffs "directed a work crew to destroy the plaintiffs [ sic ] home and all its contents" and jailed Plaintiff without due process in violation of his rights under the Fourth and Fifth Amendments to the United States Constitution and possibly in violation of 42 U.S.C. § 1981. Nevertheless, Plaintiff did not set out with particularity in his Amended Complaint that such acts were directed or conducted by Multnomah County Sheriff's Deputies. The Court, therefore, permitted Plaintiff to file a Second Amended Complaint on the grounds that Plaintiff is proceeding pro se and might be able to state a claim with the direction provided by the Court in its July 11, 2013, Opinion and Order. The Court, however, noted in the Order that it was permitting Plaintiff to file a Second Amended Complaint

for the sole purpose of amending his allegations and claims against Multnomah County for violation of his rights under the Fourth and Fifth Amendments and/or § 1981 arising from the alleged actions by Multnomah County Sheriff's Deputies on February 2, 2011. Plaintiff is not permitted to add further claims, facts, or allegations to his Second Amended Complaint against Multnomah County beyond those enumerated above. If Plaintiff adds additional claims or allegations against Multnomah ...

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