United States District Court, D. Oregon, Eugene Division
ROBERT S. BONDICK, Plaintiff,
CITY OF EUGENE POLICE DEPARTMENT; OFFICER N. BAILLAS; OFFICER GROSE; LT. S. MCGANN Defendants.
OPINION & ORDER
AIKEN UNITED STATES DISTRICT JUDGE.
Robert S. Bondick seeks leave to proceed in forma
pauperis ("IFP") in this action. For the
reasons set forth below, the Complaint (doc. 1) is DISMISSED
with leave to amend. Plaintiffs Motion for Appointment of Pro
Bono Counsel (doc, 3) is DENIED. The Court shall defer ruling
on plaintiffs IFP Petition (doc. 2) pending submission of an
February 18, 2019, Officer Grose, Officer Baillas, and Lt.
McGann of the Eugene Police Department responded to a
complaint of public indecency at a St. Vincent de Paul store
in Eugene, Oregon. The officers obtained a photograph of the
suspect that was taken by a store employee. Dispatch alerted
the officers that the suspect had been seen going into a
nearby trampoline business. McGann entered the trampoline
business and asked the store employees if they had seen
someone matching the suspect's description. McGann then
saw plaintiff leaving a nearby Goodwill store and positively
identified him as the suspect based on the employee's
photograph. McGann detained plaintiff as he tried to enter
another store. McGann called for backup and read plaintiff
his Miranda rights. Together, Baillas, Grose, and McGann
determined plaintiff had not committed an arrestable offense
and released him. Since the incident, the owners of the
trampoline business and St. Vincent de Paul have asked
plaintiff to not return to their businesses.
after the incident, Plaintiff filed a public records request
to obtain a copy of the incident report from the Eugene
Police Department. Plaintiff received the report, which
stated that a store employee had taken a photo of the suspect
but did not include a copy of the actual photo. Plaintiff
then submitted a public records request for the photo. After
some delay, plaintiff was told that the photo was not
uploaded to the police server and therefore could not be
filed a grievance against the employees of the Eugene Police
Department with the police auditors' office. The
auditors' office closed the investigation a week later,
explaining that "the Captain" had already discussed
his findings with plaintiff. Plaintiff then filed this
pro se civil rights action.
all parties instituting any civil action in United States
District Court must pay a statutory filing fee. 28 U.S.C.
§ 1914(a). However, the federal IFP statute, 28 U.S.C.
§ 1915(a)(1), provides indigent litigants an opportunity
for meaningful access to federal courts despite their
inability to pay the costs and fees associated with that
access. To authorize a litigant to proceed IFP, a court must
make two determinations. First, a court must determine
whether the litigant is unable to pay the costs of commencing
the action. 28 U.S.C. § 1915(a)(1). Second, it must
assess whether the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune to such
relief. 28 U.S.C. § 1915(e)(2)(B).
respect to the second determination, district courts have the
power under 28 U.S.C. § 1915(e)(2)(B) to screen
complaints even before service of the complaint on the
defendants and must dismiss a complaint if it fails to state
a claim. Courts apply the same standard under 28 U.S.C.
§ 1915(e)(2)(B) as when addressing a motion to dismiss
under FRCP 12(b)(6). Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012). To survive a motion to dismiss
under the federal pleading standards, the complaint must
include a short and plain statement of the claim and
"contain sufficient factual matter, accepted as true, to
'state a claim for 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)). "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. The plausibility standard
. . . asks for more than a sheer possibility that a defendant
has acted unlawfully." Id. The court is not
required to accept legal conclusions, unsupported by alleged
facts, as true. Id.
se pleadings are held to less stringent standards than
pleadings by attorneys. Haines v. Kerner, 404 U.S.
519, 520-21 (1972). That is, the court should construe
pleadings by pro se plaintiffs liberally and afford
the plaintiffs the benefit of any doubt. Karim-Panahi v.
Los Angeles Police Dep't, 839 F.2d 621, 623 (9th
Cir. 1988). Additionally, a pro se litigant is
entitled to notice of the deficiencies in the complaint and
the opportunity to amend, unless the complaint's
deficiencies cannot be cured by amendment. Id.
brings this action under 42 U.S.C. § 1983 and Federal
Rule of Civil Procedure 37(e), asserting two claims; (1)
"Perverting the Course of Justice" and (2)
"Tampering with Evidence." Compl. Ex. at 2.
Plaintiff alleges that the officers were "grossly]
negligen[t]" and conspired against him during their
investigation because they did not ask the victim to identify
plaintiff as the public indecency suspect. Id.
Plaintiff also alleges that "at least two police
officers," the Eugene Police Department, and the witness
who took the photograph of the suspect tampered with evidence
because the photograph of the suspect is now missing.
"Perverting the Course of Justice" claim is
DISMISSED with leave to amend because plaintiff fails to
allege what right of his was violated. Plaintiffs
"Tampering with Evidence" claim is DISMISSED with
prejudice because a plaintiff cannot sue for a violation of a
rule of civil procedure. I. Perverting the Course of
Justice The Court understands plaintiffs
"Perverting the Course of Justice" claim to assert
a claim under 42 U.S.C. § 1983. In order to prevail on a
§ 1983 claim, a plaintiff must demonstrate that (1)
their federal Constitutional or statutory rights were
violated; and (2) the violation was caused by the conduct of
a person acting under the color of state law. Crumpton v.
Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Plaintiff
fails to assert what federal Constitutional or statutory
right was violated. Therefore, plaintiffs claim is DISMISSED
with leave to amend. Should plaintiff file an amended
complaint, he should specify what right of his was violated.
crafting an amended complaint, plaintiff should also keep in
mind that his § 1983 claim against the individual police