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Calhoun v. Portland Police Bureau

United States District Court, D. Oregon, Portland Division

March 21, 2018

PORTLAND POLICE BUREAU (PPB), JOSHUA DERY., in his individual and official capacity RONALD HOSELY in his individual and official capacity, D. SEAN BURNS, in his individual and official capacity et al., and AMERICAN MEDICAL RESPONSE (AMR), BECKY CLARK, agent in her individual and official capacity, et al., Defendants.


          MICHAEL W. MOSMAN, J.

         Plaintiff Abdul Khalis Calhoun is proceeding pro se in this civil rights action. On December 14, 2017, he filed an Amended Complaint, a Memorandum of Points and Authorities, a Declaration of Service of his Amended Complaint, and a Jury Trial Demand for Resolution of Dispute in Commercial Law. Portland Police Bureau ("PPB") and American Medical Response ("AMR") Defendants each filed Motions to Dismiss the Amended Complaint under Rules 12(b) and 41(b), and PPB Defendants moved to strike documents Mr. Calhoun filed with his Amended Complaint and in support of his Response opposing the Motions to Dismiss. The Parties have fully briefed the Motions, and as explained below, I GRANT Defendants' Motions to Dismiss [55 and 56], and DENY the PPB Defendants' Motions to Strike [55 and 64].

         A. Background.

         An attorney represented Mr. Calhoun when he filed this case in June 2017. The initial Complaint named AMR, Inc., the City of Portland, Joshua Dery, Kyle Stutevoss, Ronald Hoesly, and D. Sean Burns as defendants. (Compl., dkt. no. 1). Mr. Calhoun's then-counsel prepared a summons for issue by the Clerk of the Court. Mr. Calhoun's then-counsel directed the summons for AMR, Inc. to Lori A.E. Evans, who the summons described as "AMR's authorized representative." (Summons, dkt. no.3).

         In late September, Mr. Calhoun's attorney moved to withdraw. (Mot. to Withdraw as Counsel, dkt. no. 27). During the hearing on the motion to withdraw at which Mr. Calhoun, his then-attorney, and counsel for Defendants personally appeared, the Court granted Mr. Calhoun's then-counsel's motion to withdraw and gave Mr. Calhoun sixty days to find new counsel. (Min. of Proceedings, dkt. no. 33). At a telephone status conference in early December, Mr. Calhoun indicated he planned to proceed pro se, and the Court granted his oral request for leave to file an Amended Complaint but specified that the Amended Complaint could not add any new parties to the case. (Min. of Proceedings, dkt. no. 50). Shortly after the status conference, Mr. Calhoun filed his Amended Complaint, which Defendants now move to dismiss.

         B. Legal Standards.

         Court must liberally construe documents filed by pro se litigants, and must hold a. pro se complaint, "however inartfully pleaded, " to a "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). Cf. Fed. Rule Civ. Proc. 8(e) ("Pleadings must be construed as to do justice"). The rule, however, "applies only to a plaintiffs factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). '"[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.'" Brims v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

         Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Specific facts are not necessary, but a plaintiff must allege facts that establish "more than a sheet possibility that a defendant has acted unlawfully" and "raise a right to relief above the speculative level." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Put another way, a claim for relief must be plausible, not just possible. Id. When ruling on a defendant's motion to dismiss for failure to state a claim brought under Federal Rule of Civil Procedure 12(b)(6), a judge must accept as true all of the factual allegations contained in the complaint. Id.

         Federal Rule of Civil Procedure 12(b)(5) allows a judge to dismiss a complaint for insufficient service of process. A plaintiff must serve process on a defendant within 120 days after a complaint is filed. Fed.R.Civ.P. 4(m).

         Federal Rule of Civil Procedure 41(b) allows a defendant to move to dismiss claims against it if a plaintiff fails to comply with a court order.

         Federal Rule of Civil Procedure 12(f) allows a court to strike "redundant, immaterial, impertinent, or scandalous matters.

         C. Discussion.

         1. The PPB Defendants' Motions to Strike.

         The PPB Defendants move to strike the "Citation" and Memorandum of Points and Authorities that Mr. Calhoun filed along with his Amended Complaint as well as the document identified as a copy of the original Complaint in this matter that Mr. Calhoun filed in support of his Response in Opposition to the Motions to Dismiss. While the PPB Defendants correctly identify the ...

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