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Walsh v. City of Portland

United States District Court, D. Oregon, Portland Division

May 23, 2018

JOSEPH WALSH, Plaintiff,
v.
CITY OF PORTLAND, et ah, Defendants

          ORDER

          Honorable Paul Papak United States Magistrate Judge

         Pro se Plaintiff Joseph Walsh brings this civil rights action against Defendants City of Portland, Mayor Ted Wheeler, and the Portland Police Bureau, alleging that Defendants violated his First Amendment rights during a protest on June 4, 2017 in downtown Portland. Defendants move to dismiss the Complaint for failure to state a claim. For the following reasons, I grant Defendants' motion to dismiss with prejudice as to the Portland Police Bureau and without prejudice as to Mayor Wheeler and the City of Portland. Plaintiff may file an amended complaint in accordance with this Order within thirty days.

         BACKGROUND

         In his complaint, Plaintiff alleges:

On June 4, 2017, 1 attended a large protest located in Chapman Park, Lowsdale Park and in front of City Hall.[1] I am a 75 yr. old veteran who is on 24/7 oxygen and is in poor health. I was attacked without notice by the Portland police using unknown chemical weapons. I had to be removed from the park before permanent damage was done to me.

Compl. 5, ECF No. 2.

         In his response brief, Plaintiff includes further factual background, stating,

The first indication that I had that something was wrong was a cloud of smoke coming towards us from Terry Shrunk Park[2] which was across the street from where we were sitting on the benches. I was pulled out of the park by Malcolm Chaddock who was in a panic because he feared for my health, We went two blocks to 4th Avenue and Mr. Chaddock got his private truck and took me out of the area. I was shaken and wondered for the next few days what would be the result of being exposed to this chemical. As we departed the park the police fired rubber bullets and used concussion grenades. We were all now terrified that we would be arrested or seriously injured by the actions of the police.

Pl.'s Resp. 3 (unpaginated document), ECF No. 19. Because Plaintiff is representing himself, I will treat the factual statements in his response brief as though they had been alleged in his complaint.

         As the basis for federal question jurisdiction, Plaintiff cites the "Federal Constitution, 1st Amendment Rt. of Assembly[, ] petition the government." Compl. 4. For relief, Plaintiff seeks "a permanent injunction against the City of Portland in the use of chemical warfare against their citizens." Compl. 6. Plaintiff also seeks $500, 000 in damages "because of the severity of the action taken by the" Portland Police Bureau." Compl. 6.

         MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER RULE 12(B)(6)

         A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed. R. Civ. Pro. 8(a)(2), and a complaint that fails to do so is subject to dismissal pursuant to Rule 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S, 662, 678 (2009) (quoting Bell Ail Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To show plausibility, the plaintiff must do more than show "a sheer possibility that a defendant has acted unlawfully." Id. The court is not required to accept a complaint's legal conclusions. Id. "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Chubb Custom Ins. Co. v. Space Sys./Loral Inc., 710 F.3d 946, 956 (9th Cir. 2013). 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." Iqbal, 556 U.S. at 680-81. Even under the liberal pleading standard of Rule 8(a)(2), "a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations and quotations omitted). "Determining whether a complaint states a plausible claim for relief.. . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

         The court should construe the pleadings of a pro se litigant more leniently than those drafted by a lawyer. See Eldridge v. Block,832 F.2d 1132, 1137 (9th Cir. 1987). "'Unless it is absolutely clear that no amendment can cure the defect, ... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.'" Garity v. APWU Nat'l Labor Org., 828 F, 3d 848, 854 (9th Cir. ...


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