United States District Court, D. Oregon, Portland Division
Honorable Paul Papak United States Magistrate Judge
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.
complaint, Plaintiff alleges:
On June 4, 2017, 1 attended a large protest located in
Chapman Park, Lowsdale Park and in front of City
Hall. 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
Compl. 5, ECF No. 2.
response brief, Plaintiff includes further factual
The first indication that I had that something was wrong was
a cloud of smoke coming towards us from Terry Shrunk
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.
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.
TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER RULE
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.
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. ...