United States District Court, D. Oregon, Pendleton Division
JESSE M. GARRED, Plaintiff,
MALHEUR COUNTY; MALHEUR COUNTY ENVIRONMENTAL HEALTH; CRAIG GEDDES, Director of Malheur County Environmental Health; SUSAN FULLER, Previous Environmental Health Director; Unknown John and Jane Does 1-thru-5, Defendants.
OPINION AND ORDER
PATRICIA SULLIVAN, Magistrate Judge.
Plaintiff Jesse M. Garred ("Garred"), a land owner in Harper, Oregon, filed a pro se complaint against Malheur County, Malheur County Environmental Health, Craig Geddes ("Geddes"),  Susan Fuller ("Fuller"),  and Unknown John and Jane Does 1-thru-5 (collectively "defendants"). Garred claims harassment and violations of his due process rights under the United States and Oregon Constitutions. Garred alleges Malhuer County and the individual defendants targeted him by enforcing a County ordinance with which similarly situated property owners in the area were not also forced to comply. All defendants move to dismiss Garred's complaint (doc. # 9) pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, defendants' motion is granted.
Malheur County Code, Title 3, Chapter 4, Section 4, requires the abatement of public nuisances, including the removal of excess vehicles, scrap metal, hazardous appliances, and litter from property.
Garred owns a home in Harper, Oregon. (Compl. ¶ 1.) On three separate occasions, Malheur County officials have served Garred with a complaint or citation to remove public nuisances from his property and comply with the Title 3 ordinance. ( Id. ¶¶ 6, 7, 14.) The County served the first citation to Garred in July 2004. ( Id. ¶ 6.) Garred alleges he fully complied with the first citation to his detriment in the amount of $2, 500. ( Id. ) This citation against him was dismissed. ( Id. )
The County later served Garred with a warning citation on April 28, 2009. ( Id. ¶ 7.) Fuller sent Garred a letter stating she had visited the property and found abandoned vehicles and solid waste in violation of the Title 3 ordinance. ( Id. ) The letter gave Garred until May 15, 2009, to remedy the problem or he would be formally cited and have to appear in Malheur Justice Court. ( Id. ) In a follow-up conversation, Fuller also informed Garred he needed to build a fence around his property. ( Id. ¶ 8.)
Garred began cleaning up his property on July 2, 2009. ( Id. ¶ 9.) Before Garred's court appearance on July 26, 2009, he had removed scrap from his property and constructed 48 feet of a privacy fence. ( Id. ¶¶ 9-11). The Judge of the Malheur Justice Court considered the progress that had been made by the time of the hearing and dismissed the citation. ( Id. ¶¶ 12, 13.)
The County served Garred with a third citation in 2012. ( Id. ¶ 14.) The County ordered Garred to finish construction of the privacy fence, and Garred complied costing him thousands of dollars. ( Id. ) Garred alleges neighboring property owners, who maintained conditions similar to his on their properties, were never cited for violations of the ordinance. ( Id. ¶¶ 14-16.)
Garred's pro se complaint generally asserts harassment and violations of his due process rights under the United States and Oregon Constitutions. ( Id. ¶ 18.) He alleges defendants targeted him by enforcing the County ordinance with which similarly situated property owners in the area were not also forced to comply. ( Id. ¶¶ 14-16.) Construing Garred's complaint liberally, as the court is required to do when a plaintiff appears pro se,  the court finds Garred asserts: (1) a claim under 42 U.S.C. § 1983 alleging a violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution, (2) a claim under 42 U.S.C. § 1983 alleging a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and (3) a supplemental claim under state law. Defendants move to dismiss on the grounds Garred has failed to state a claim, failed to comply with the Oregon Tort Claims Act, and his complaint is barred by the statute of limitations. (Defs.' Mot. Dismiss and Mem. Supp. 2.)
Where plaintiff "fails to state a claim upon which relief can be granted, " the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). However, bare assertions that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). Before dismissing a pro se complaint, in many circumstances the court must instruct the pro se litigant as to the deficiencies in the complaint and grant leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). Nevertheless, a pro se plaintiff's claims may be dismissed without leave to amend where it appears beyond doubt plaintiff can prove no set of facts that would entitle him to relief and the complaint's deficiencies cannot be cured by amendment. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).
I. Claims Under The United States ...