United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATIONS
YIM YOU UNITED STATES MAGISTRATE JUDGE
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.
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. ECF #34. For the reasons discussed below,
the Motion to Dismiss In Part (ECF #34) should be GRANTED.
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.
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.
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. ¶
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.
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
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).
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).
Dismissal of PPB and PBOT as ...