United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
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 previously moved to dismiss
the Complaint for failure to state a claim, I granted
Defendants' motion with prejudice as to the Portland
Police Bureau, and without prejudice as to Wheeler and the
City of Portland, and allowed Plaintiff leave to file an
amended complaint. Order, ECF No. 22.
has filed a document entitled, "Response to Judge's
Order concerning Plaintiffs amended complaint correcting the
deficiencies noted in the Court's Order." ECF No.
24. I construe this document as Plaintiffs Amended Complaint.
ECF No. 26.
now move to dismiss the Amended Complaint. ECF No. 25.
Plaintiff has not responded. I grant the Motion to Dismiss
amended complaint generally supersedes the original
complaint. See Hal Roach Studios, Inc. v. Richard Feiner
and Co., 896 F.2d 1542, 1546 (9th Cir. 1990). However,
because here Plaintiff represents himself and has not
formally moved to amend the original Complaint, I treat
Plaintiffs filings, including the initial Complaint, response
brief, and Amended Complaint, as comprising one complaint.
initial 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 alleges:
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 Mi-, 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. In the
Amended Complaint, Plaintiff states that "the
police" "did attack me and others as we sat on a
bark bench," Am. Compl. 4 (unpaginated document).
Plaintiff further states,
The fact that a friend dragged me out of the park and up two
blocks to get out of the way of the tear gas and whatever
chemicals the police deployed should not be used as a viable
defense. The fact that I did not show immediate damage should
not be used to say I was not hurt or there is no claim. The
psychological effects alone have been intense. I rarely leave
my home now and only attend meetings that would appear safe
from the police, City Counsel and County Commissioner
hearings. If I do attend a protest, as soon as the robo cops
arrive I leave ....
Compl. 4. Plaintiff also states, "My ability to walk has
diminished to such an extent that walking 100 ft without
stopping is difficult. .... The running of the two blocks was
monumental for me and did permanent damage to my lungs."
Am. Compl. 4. Plaintiff states that he "will produce
medical evidence" ...