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Shore v. City of Portland

United States District Court, D. Oregon, Portland Division

May 21, 2018

JAY VINCENT SHORE, Plaintiffs,
v.
CITY OF PORTLAND, OREGON; PORTLAND BUREAU OF TRANSPORTATION; PORTLAND POLICE BUREAU; SERGEANT'S TOWING, INC., Defendants.

          FINDINGS AND RECOMMENDATIONS

          YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff Jay Vincent Shore (“Shore”) has filed a complaint alleging that he is a qualified individual with a disability pursuant to 42 U.S.C. § 12131(2). He contends he was subjected to a pattern of discrimination and denied reasonable accommodation in violation of Title II and Title III of the American with Disabilities Act (“ADA”); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and the Due Process Clause of the Fourteenth Amendment. Compl. ¶¶ 70-98, ECF #1. Shore further alleges that defendants acted to deprive him of his rights under color of law, in violation of 42 U.S.C. § 1983. Id. ¶¶ 99 & 100.

         Defendants City of Portland, Portland Bureau of Transportation (“PBOT”), and Portland Police Bureau (“PPB”) have filed a Motion to Dismiss In Part (ECF #34) pursuant to FRCP 12(b)(6) for an order (1) dismissing PBOT and PPB as improper parties; and (2) dismissing the Title III claims against the City of Portland as a public entity.[1] ECF #34. For the reasons discussed below, the Motion to Dismiss In Part (ECF #34) should be GRANTED.

         FACTUAL BACKGROUND

         Shore alleges that he lost his home to foreclosure in December 2005 and that he suffers from post-traumatic stress disorder (PTSD) as a result. Compl. ¶¶ 13 & 16, ECF #1. He became transient and arrived in Portland, Oregon, in November 2016, settling near the intersection of N. Roberts and N. Lombard streets in North Portland. Id. ¶15. Although Shore is not the registered owner, he has the use of a converted 1991 school bus and a 1996 Dodge Neon, which he regards as auxiliary aids for recovery from PTSD and a June 2017 inguinal hernia repair surgery. Id. ¶ 16. In support of this position, the complaint quotes a medical doctor, who attests that the vehicles are acting as auxiliary aids and that “[l]osing access to these vehicles would be detrimental to [Shore's] overall health and well being.” Id.

         On June 8, 2017, a tow warning was placed on the 1991 converted school bus providing notice that “[i]f this vehicle is not completely removed from the public right of way, it will be towed by order of the City of Portland.” Id. ¶¶ 28-29. A subsequent warning was placed on the vehicle on July 6, 2017. Id. ¶ 45. On July 25, 2017, the City of Portland issued a parking citation. Id. ¶ 40. Shore alleges that he received a total of six parking citations. Id. ¶ 44. The complaint further references a number of interactions with PPB and PBOT employees in which Shore was urged to move the vehicles. Id. ¶¶ 48, 49, 50, 54. On September 15, 2017, the 1996 Dodge Neon was disconnected from the converted school bus and towed by Sergeant's Towing, Inc., who Shore claims is acting as an agent of and at the direction of the City of Portland. Id. ¶¶ 11 & 56.

         Prior to the towing, Shore sent an “ADA Title II Notice” to PBOT's ADA Coordinator David Galat, invoking his right to reasonable accommodation under the ADA. Id. ¶ 31. Galat responded to the registered owner of the vehicles, Extramural Church Trust #12, noting the registered owner's obligation to comply with all parking regulations. Id. ¶ 33. Galat further asserted that notice and time had been provided to allow the registered owner to relocate the illegally parked vehicles. Id. Shore followed with a cease and desist letter addressed to Galat, including evidence of his status as a qualified individual with a disability. Id. ¶ 55.

         Shore filed this lawsuit on September 27, 2017, asserting that the City of Portland, PPB, and PBOT “have continually, and at all times refused to accommodate [him], ” and that all defendants have “stolen/seized” his auxiliary aid and “created a discriminatory, hostile and unfair environment.” Id. ¶¶ 37, 57, 59.

         STANDARDS

         In order to state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” FRCP 8(a)(2). This standard “does not require ‘detailed factual allegations, '” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555). In order to survive a motion to dismiss for failure to state a claim pursuant to FRCP 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570).

         In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In civil rights cases involving a plaintiff proceeding pro se, this court construes the pleadings liberally and affords the plaintiff the benefit of any doubt. McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds, WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1998); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). Although pro se complaints are construed liberally, courts may not supply essential elements of the claim that were not initially pled. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         FINDINGS

         I. Dismissal of PPB and PBOT as ...


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