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Stone v. Van Wormer

United States District Court, D. Oregon, Portland Division

September 4, 2019

BRIAN G. STONE, Plaintiff,
TYLER VAN WORMER, Deputy Sherriff Clackamas County; CRAIG ROBERTS, Sherriff Clackamas County Defendants.

          Brian G. Stone, Plaintiff Pro Se.

          Stephen L. Madkour, Scott C. Ciecko Office of Clackamas County Counsel, Attorneys for Defendant.

          OPINION & ORDER


         Plaintiff 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.


         The following facts are taken from Plaintiff's FAC and assumed true at this early stage of the proceeding.

         On 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.

         Defendant 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.

         On 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.


         A 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 679.

         However, 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 omitted).


         Liberally 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).[1] 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.

         Defendants 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).

         I. Motion to Strike “Continuation to Amended Complaint”

         The 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.

         The 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 ...

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