United States District Court, D. Oregon
ORDER OF DISMISSAL
Michael W. Mosman Chief United States District Judge
Christopher Corwin brings this civil rights action pursuant
to 42 U.S.C. § 1983. Currently before the Court is
plaintiffs Amended Complaint (ECF No. 14).
order to state a claim, a plaintiff must allege facts which,
when accepted as true, give rise to a plausible inference
that the defendants violated the plaintiffs constitutional
rights. Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009);
Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 556-57
(2007). A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Iqbal. 556 U.S. at 678; Moss
v. U.S. Secret Serv.. 572 F.3d 962, 969 (9th Cir. 2009).
"A pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action
will not do." IqbaL 556 U.S. at 678 (internal
quotations omitted). Plaintiff is proceeding pro se,
and therefore this Court construes the pleadings liberally
and affords plaintiff the benefit of any doubt. Erickson
v. Pardus, 551 U.S. 89, 94 (2007).
brings this action against Oregon State Police troopers
Christopher Cowen ("Cowen"), Dylan Kean
("Kean"), and Luther Schwartz
("Schwartz"). PL's Am. Compl. at 2-3. Plaintiff
alleges that (1) defendants subjected him to excessive force
in violation of the Fourth and Eighth Amendments; and (2)
"law enforcement" conducted an unlawful search of
his cell phone in violation of the Fourth Amendment.
Id. at 3, 12-13.
alleges that defendants stopped a car in which he was a
passenger. Id. at 12-13. Plaintiff alleges that he
asked Cowen whether he was under arrest and Cowen failed to
respond. Id. at 13. Plaintiff allegedly started
walking away from the scene, because the traffic stop was
made to arrest his brother, and the defendants violently
threw him to the ground, assaulted him, held his face in a
"pool of water," and tased him. Id. at
does not allege whether criminal charges arising out of this
altercation are pending in state court. However, in a letter
submitted in response to the Court's Order to Amend (ECF
No. 11), plaintiff attached an indictment charging him with
the following offenses against Cowen and Kean: Assaulting a
Public Safety Officer (two counts), Attempted Aggravated
Harassment, Resisting Arrest, Menacing (two counts), and
Giving False Information to a Peace Officer. PL's Resp.
(ECF No. 18) at 2-4. Additionally, plaintiff was charged with
assaulting, harassing, and menacing two emergency service
providers during the same incident. Id. at 4-5.
on the foregoing, this Court concludes that it must abstain
from exercising jurisdiction over plaintiffs excessive force
claim because there are pending charges in state court
arising out of his altercation with defendants. Absent
extraordinary circumstances, this Court may not interfere
with a pending state criminal proceeding that implicates
important state interests. ReadyLink Healthcare. Inc. v.
State Comp. Ins. Fund. 754 F.3d 754, 758 (9th Cir. 2014)
(citing Younger v. Harris. 401 U.S. 37, 43-54
(1971)). Abstention is appropriate in the instant proceeding
because (1) there is an ongoing state proceeding; (2) the
proceeding is criminal; (3) the proceeding implicates the
important state interest of prosecuting individuals who break
state criminal laws; (4) plaintiff has an adequate
opportunity to raise his federal challenge in the state
proceeding; and (5) granting monetary relief against the
defendants for the use of excessive force would have the
practical effect of enjoining the state proceeding. See
ReadyLink Healthcare. Inc.. 754 F.3d at 758.
Further, plaintiff has made no showing of bad faith,
harassment, or some other extraordinary circumstance that
would make abstention inappropriate. See Arevalo v.
Hennessy. 882 F.3d 763, 765-66 (9th Cir. 2018).
alleges that his cell phone fell out of his pocket during the
altercation with defendants. PL's Am. Compl. at 12.
Plaintiff does not allege who took his cell phone, but in his
letter to the Court he states that Trooper Schwartz
confiscated it. PL's Resp. at 1. Plaintiff alleges that
"law enforcement" went on a "fishing
expedition" on his cell phone as evidenced by the fact
that when his phone was returned one month after his
arrested, it was fully charged despite being almost dead when
he was arrested. PL's Am. Compl. at 12-13, 15. Plaintiff
alleges that the search of his cell phone is unrelated to his
criminal charges. Id. at 12.
warrant generally is required before law enforcement
officials may search a cell phone that was seized incident to
an arrest. Riley v. California,573 U.S. 373, 401
(2014). In the instant proceeding, plaintiff has failed to
allege any facts to support a reasonable inference that the
named defendants searched his phone. Rather, plaintiff
alleges only that "law enforcement" searched his
phone. PL's Am. Compl. at 12. In order for a defendant to
be liable under 42 U.S.C. § 1983, he or she must have
personally participated in the alleged constitutional
violation. Taylor v. List.880 F.2d 1040, 1045 (9th
Cir. 1989). Plaintiff has alleged no facts to ...