United States District Court, D. Oregon, Portland Division
BRIAN G. STONE, Plaintiff,
TYLER VAN WORMER, Deputy Sherriff Clackamas County; CRAIG ROBERTS, Sherriff Clackamas County Defendants.
G. Stone, Plaintiff Pro Se.
Stephen L. Madkour, Scott C. Ciecko Office of Clackamas
County Counsel, Attorneys for Defendant.
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
Brian G. Stone brings six claims against Defendants Clackamas
County Deputy Sherriff Tyler Van Wormer, and Clackamas County
Sherriff Craig Roberts (collectively
“Defendants”). This matter comes before the Court
on Defendants' Motion to Dismiss [ECF 16] Plaintiff's
First Amended Complaint (“FAC”) [ECF 9] and
Motion to Strike [ECF 19] Plaintiff's “Supplement
to Amended Complaint” [ECF 18]. For the reasons
discussed below, the Court GRANTS in part and DENIES in part
Defendants' Motion to Dismiss as follows: Plaintiff's
first, second, third, fourth, and fifth claims are dismissed,
with leave to amend his complaint within twenty-one (21)
days; Plaintiff's sixth claim, premised on the Ninth
Amendment, is dismissed with prejudice; the Court declines to
dismiss the FAC in its entirety based on Defendants'
alternative argument under Heck v. Humphrey. The
Court GRANTS Defendants' Motion to Strike.
following facts are taken from Plaintiff's FAC and
assumed true at this early stage of the proceeding.
January 30, 2018, at approximately 3:00 a.m., Plaintiff and
Defendant Van Wormer drove past each other traveling in
opposite directions. FAC 1. Defendant Van Wormer “hung
a u-turn” and pursued Plaintiff from a “distance
of at least half a mile back” and followed Plaintiff
onto an adjacent street. Id. Defendant Van Wormer
signaled Plaintiff to pull over for “alleged expiration
of tags, ” which Plaintiff did. Id. Defendant
Van Wormer approached the passenger side of Plaintiff's
vehicle where Plaintiff's “nephew who is black was
questioned and arrested.” Id. Plaintiff
identifies as “white by race.” Id. at 4.
Van Wormer questioned and arrested Plaintiff for
“suspected [driving under the influence of intoxicants
(“DUII ”)] after a field sobriety test [showed]
no impairment.” Id. at 2. Plaintiff was taken
to the Clackamas County Jail and was administered a
Breathalyzer test. Id. The individual administering
the test failed to follow procedures outlined in a manual
issued by the Oregon State Police and Defendant Van Wormer
failed to complete paperwork related to the test.
Id. at 2-3. Plaintiff wrote and mailed a complaint
about the incident to Defendant Roberts in March 2018.
Id. at 3.
March 15, 2018, and November 1, 2018, Plaintiff requested and
was denied discovery, presumably related to his DUII
prosecution, from the Clackamas County District
Attorney's Office. Id. at 3. Finally, Plaintiff
asserts he was deprived of his Sixth Amendment right to have
compulsory process to obtain witnesses at his criminal trial,
also presumably related to his DUII case. Id. at 4.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the claims. Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). “All
allegations of material fact are taken as true and construed
in the light most favorable to the nonmoving party.”
Am. Family Ass n, Inc. v. City & Cnty. of S.F.,
277 F.3d 1114, 1120 (9th Cir. 2002). 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[, ]” meaning “the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). In
other words, a complaint must contain “well-pleaded
facts” that “permit the court to infer more than
the mere possibility of misconduct[.]” Id. at
the court need not accept conclusory allegations as truthful.
See Warren v. Fox Family Worldwide, Inc., 328 F.3d
1136, 1139 (9th Cir. 2003) (“[W]e are not required to
accept as true conclusory allegations which are contradicted
by documents referred to in the complaint, and we do not
necessarily assume the truth of legal conclusions merely
because they are cast in the form of factual
allegations.”) (internal quotation marks, citation, and
alterations omitted). A motion to dismiss under Rule 12(b)(6)
will be granted if a plaintiff alleges the
“grounds” of his “entitlement to
relief” with nothing “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “Factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact)[.]” Id. (citations and footnote
construing the FAC, the Court assumes that Plaintiff asserts
his claims under 42 U.S.C. § 1983 which “is not
itself a source of substantive rights, but merely provides a
method for vindicating federal rights elsewhere
conferred.” Albright v. Oliver, 510 U.S. 266,
271 (1994) (internal quotation marks omitted). Plaintiff's
first claim alleges racial profiling in violation of the
Equal Protection Clause of the Fourteenth Amendment. See FAC
1, 4. Plaintiff's second claim alleges a failure to
follow internal department procedures for administering
Breathalyzer tests, as outlined in an Oregon State Police
manual. Id. at 2-3. Plaintiff's third and fourth
claims stem from an alleged failure to be afforded criminal
discovery and compulsory process in his state criminal trial
proceedings, which resulted in his DUII conviction.
Id. at 3-4. Plaintiff's fifth claim alleges
Defendant Roberts failed to supervise Defendant Van Wormer.
Id. Finally, Plaintiff's sixth claim alleges a
violation of the Ninth Amendment. Id. at 4.
assert Plaintiff's claims lack merit because: (1) he
failed to plead sufficient facts to establish Constitutional
violations; (2) Defendants were not involved in the criminal
proceedings in state court; (3) Defendant Roberts is not
properly named because he was not personally involved in any
alleged violation of Plaintiff's rights; and (4) §
1983 claims are not appropriately brought under the Ninth
Amendment. Alternatively, Defendants assert Plaintiff's
claims are barred by the Supreme Court's decision in
Heck v. Humphrey, 512 U.S. 477 (1994).
Motion to Strike “Continuation to Amended
Court must resolve one preliminary matter before reaching the
substantive merits of Defendants' Motion to Dismiss:
whether it will consider Plaintiff's filing titled
“Continuation to Amended Complaint.” [ECF 16]. In
that document, Plaintiff renews his “racial
profiling” claim under to § 1983, cites to several
other portions of the United States Code, and alludes to
“Police Misconduct.” Defendants move to strike
the “Continuation to Amended Complaint” on the
grounds it outside the scope of permissible pleadings allowed
by Federal Rule of Civil Procedure (“Rule”) 7(a);
or, in the alternative, violates the amended pleading
requirements of Rule 15. Defs.' Mot. Strike 2.
Court finds Defendants' Rule 15 argument persuasive.
Under Rule 15(a)(1)(A), a party may (1) amend their complaint
once as a matter of course before having been served with a
responsive pleading or (2) “with the opposing
party's written consent or the court's leave.”
Because the “Continuation to Amended Complaint”
does not fall into either category, Defendants' Motion to
Strike [ECF 19] is GRANTED. That said, the Court is mindful
of the liberality of Rule 15(a) and the leniency accorded to
pro se litigants. See Amerisource Bergen Corp. v.
Dialysis West, Inc.,465 F.3d 946, 951 (9th Cir. 2006)
(“Rule 15(a) is very liberal and leave to amend
‘shall be freely given when justice so
requires.'”) (quoting Fed.R.Civ.P. 15(a)).
Therefore, for the reasons explained below, the ...