Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Reitz v. Adams

United States District Court, D. Oregon, Portland Division

March 2, 2015

ROBIN MARK REITZ Plaintiff,
v.
MAYOR SAM ADAMS, GOVERNOR KITZHABER OF OREGON, PORTLAND POLICE DEPARTMENT, STATE OF OREGON, AND OREGON DEPARTMENT OF TRANSPORTATION, Defendants.

FINDINGS & RECOMMENDATION

JOHN V. ACOSTA, Magistrate Judge.

Robin M. Reitz ("Reitz"), proceeding pro se and in forma pauperis, filed this lawsuit against former Portland Mayor Sam Adams ("Adams"), the Portland Police Bureau ("PPB")[1] (the "City Defendants"), former Oregon Governor John Kitzhaber ("Kitzhaber"), the State of Oregon ("State"), and the Oregon Department of Transportation ("ODOT") (the "State Defendants") (collectively "Defendants") to recover for injuries Reitz sustained after being attacked on state property located in Portland, Oregon. Now at issue are five motions: (1) Reitz's Motion for Default filed June 27, 2014 (the "First Motion for Default") (Dkt. No. 38); (2) the State Defendants' Motion to Dismiss for Failure to State a Claim (Dkt. No. 43); (3) the City Defendants' Motion to Dismiss for Failure to State a Claim (Dkt. No. 44); (4) Reitz's Motion for Default Judgment filed July 24, 2014 (the "Second Motion for Default") (Dkt. No. 53); and (5) Reitz's Motion for Extension of Time (Dkt. No. 56.) The court concludes Reitz's claims against the named defendants should be dismissed with prejudice.

Factual Background

Reitz's Second Amended Complaint ("Complaint") is hand-written and largely incoherent. The allegations contained therein cover a broad range of topics, but Reitz's claims for relief arise mainly from an incident in 2011 where Reitz was attacked by two men on property owned by the State. The Police arrived and, despite a witness to support Reitz's version of events, arrested Reitz for assault, Reitz's Complaint also makes allegations that he was drugged, harassed, abused in jail, and suffered an "intentional drug induced heart attack." (Dkt. No. 24 at 1-2.) However, Reitz does not specify who drugged, harassed, and abused him.

Procedural Background

Reitz filed his original complaint November 14, 2014. The court attempted on four occasions to appoint pro bono counsel for Mr. Reitz, but none of the five attorneys appointed to represent Reitz were in a position to accept the court's appointment and serve as Reitz's counsel. (Dkt. Nos. 12, 17, 22, 25, 29.) Therefore, throughout the pendency of this case, Reitz has proceeded pro se. On March 11, 2014, without leave of the court, Reitz filed his First Amended Complaint. Defendants were never served with the First Amended Complaint. Only thirteen days later and without leave of the court, Reitz filed a Second Amended Complaint, again without leave of the court,

On May 9, 2014, the court held an in-person scheduling conference pursuant to Federal Rule of Civil Procedure ("Rule") 16. As of the date of that conference, Reitz had not served the Defendants with the Complaint. The court advised Reitz that he was required to serve the Defendants with a summons and complaint, and ordered him to do so by June 9, 2014. (Dkt. No. 34.) The court's May 9, 2014 ruling served as retroactive leave to file his Second Amended Complaint. (Dkt. No. 73.) Through the U.S. Marshals, Reitz served the Defendants between June 13, 2014, and June 26, 2014. (Dkt. Nos. 36, 37, 40, and 41.) Only days after Defendants were served with process, Reitz filed his First Motion for Default Judgment. (Dkt. No. 38.) Defendants opposed Reitz's Motion for Default Judgment and filed motions to dismiss Reitz's claims for failure to state a claim. (Dkt. Nos. 43-44.) Thereafter, Reitz filed his Second Motion for Default and a Motion for Extension of Time. (Dkt. Nos. 53, 56.)

Reitz filed a second case in this district, which was assigned to District Judge Garr M. King ("Judge King"). Reitz v. City of Portland Police Dep't, No. 3:13-CV-01483-KI. Defendants in that case moved to dismiss for lack of subject-matter jurisdiction and, on August 26, 2014, Judge King issued an Opinion and Order dismissing with prejudice all three of Reitz's claims for failure to state a claim. Id . at Dkt. No. 59. Judge King sua sponte held that Defendants did not produce sufficient evidence to demonstrate lack of subject-matter jurisdiction. Id. at *2-3. However, Judge King observed that two of Reitz' s claims were indecipherable and wholly lacked legal foundation, and the remaining claim was insufficiently pleaded. Id. at *3. On that basis, Judge King dismissed Reitz's claim with prejudice and entered a judgement in the defendants' favor. Id. at *5.

Legal Standards

I. Default Judgment

Federal Rule of Civil Procedure ("Rule") 12 provides that a defendant must answer a complaint "within 21 days after being served with the summons and complaint, " or, if the defendant waives service of process, "within 60 days after the request for a waiver was sent...." FED. R. Civ. P. 12(a)(1)(A). If a defendant fails to file an answer within the time specified in Rule 12, "and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." FED. R. Civ. P. 55(a). Upon the entry of default, the court treats as true all well-pleaded allegations made in the plaintiff's complaint against the defaulted defendant. Geddes v. United Fin. Group., 559 F.2d 557, 560 (9th Cir. 1977).

II, Motion to Dismiss Under Rule 12(b)(6)

Rule 8 requires that complaints in federal court consist of "a short and plain statement of the claim showing that the pleader is entitled to relief...." Pleadings need not contain detailed factual allegations, but "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not doll" Bell Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, a claim "may proceed even if it strikes a savvy judge that actual proof of [necessary] facts is improbable, " and the plaintiff is unlikely to succeed on the merits. Id. at 556.

On a motion for failure to state a claim, the court is limited in the evidence it may consider. Am. Family Ass'n, Inc. v. City & County of S. F., 277 F.3d 1114, 1120 (9th Cir. 2002). The court may consider the pleadings themselves, exhibits that are physically attached to the complaint, and matters of which the court may take judicial notice. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). For all other factual matters, the court must assume all allegations in the complaint are true and draw all "reasonable inferences in favor of the nonmoving party." Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992).

In cases involving a pro se plaintiff, the court construes the pleadings liberally and affords the plaintiff the benefit of any doubt. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In other words, courts hold pro se pleadings to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, despite the court's duty to treat pro se complaints liberally, the court may not supply essential elements of a claim that were not pleaded. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

III. Motion for Extension of Time

"For good cause, the court may extend the time prescribed by the [Federal Rules of Civil Procedure] or by its order to perform any act, or may permit an act to be done after that time expires" with the exception of certain deadlines related to the appeals process. FED. R. Civ. P. 26(b). Local Rule 16-3 dictates that a party seeking an extension of a court-imposed deadline must file a motion which: (1) shows good cause why the deadline should be modified; (2) shows the "effective prior use of time[;] (3) recommends a new deadline; and (4) shows "the impact of the proposed extension upon other existing deadlines, settings, or schedules." LR 16-3(a).

Discussion

The court must review and resolve five motions: (1) Reitz's First Motion for Default Judgment; (2) City Defendants' Motion to Dismiss; (3) State Defendants' Motion to Dismiss; (4) Reitz's Second Motion for Default; and (5) Reitz's Motion for Extension of Time. First, the court will first review Reitz's First Motion for Default. Second, the court will analyze Reitz's Motion for Extension of time, as the outcome of that motion affects the court's analysis on Defendants' motions to dismiss. Third, the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.