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Camarata v. Portland Community College

United States District Court, D. Oregon

September 26, 2019

GENE CAMARATA, Plaintiff,
v.
PORTLAND COMMUNITY COLLEGE, a public college organized under the laws of the state of Oregon; MARK MITSUI; LISA AVERY; HEATHER LANG; GARRETT CIMINO; PCC OFFICER JEFF FISHBACK; and JOHN DOES 1–5; all the defendants in their individual and official PCC capacities, Defendants.

          GENE CAMARATA PRO SE PLAINTIFF

          CODY J. ELLIOTT MILLER NASH GRAHAM & DUNN LLP ATTORNEY FOR DEFENDANTS

          OPINION & ORDER

          MARCO A. HERNÁNDEZ United States District Judge.

         Plaintiff Gene Camarata brings this civil rights and tort action against Defendants Portland Community College, Mark Mitsui, Lisa Avery, Heather Lang, Garrett Cimino, PCC Officer Jeff Fishback, and John Does 1–5. Defendants now move to dismiss Plaintiff’s complaint, arguing Plaintiff’s claims are untimely and lack sufficient factual detail to plausibly state his claims for relief. The Court grants Defendants’ Motion to Dismiss.

         BACKGROUND

         Plaintiff enrolled in a computer class at Portland Community College (“PCC”) in the fall of 2016. Compl. ¶ 5.[1] After attending the first class on November 9, 2016, Defendant Lang, the Dean of Students at PCC’s Sylvania Campus; Defendant Cimino, Student Conduct & Retention Coordinator for PCC’s Sylvania Campus; and campus safety officers, including Defendant Fishback, allegedly “commenced a campaign to improperly harass, torment, expel, ban, suspend and criminally trespass [Plaintiff], and to even prohibit him from speaking to others.” Compl. ¶ 6. Because of this behavior, Plaintiff did not attend the second day of class, complete the rest of the classes, or apply for future classes. Compl. ¶ 6.

         A disciplinary hearing was held on December 2, 2016. Compl. ¶ 8. Plaintiff alleges that there was no record made of that hearing and that he was not allowed to be represented by legal counsel, present witnesses, or cross examine witnesses. Compl. ¶ 7. Testimony was not taken under oath or affirmation, and he was not provided information about who his accusers were. Compl. ¶ 7. Plaintiff further alleges that he had inadequate notice of the disciplinary hearing and was unable to prepare and respond to the matters at issue. Compl. ¶ 8. PCC allegedly did not provide any supporting evidence. Compl. ¶ 8.

         On January 9, 2017, Defendant Lang sent an email suspending Plaintiff for one year, but Plaintiff alleges that in doing so he was “banned for all intents and purposes, permanently.” Compl. ¶ 9. Plaintiff’s appeal of this decision was denied by Defendant Avery, the campus president of PCC Sylvania, on February 10, 2017. Compl. ¶ 10.

         Plaintiff filed his complaint in Multnomah County Circuit Court on February 11, 2019. Compl. Plaintiff alleges that PCC policies, procedures, and practices-such as those applied to Plaintiff-are unconstitutional and provide inadequate due process. Compl. ¶ 7. Plaintiff alleges that Defendants are jointly and severally liable for all claims, action, inactions, and decisions either as supervisors or as participants. Compl. ¶ 12. Plaintiff appears to bring claims for violations of his constitutional rights-including his rights under the First, Fifth, and Fourteenth Amendments-under 42 U.S.C. § 1983. Compl. ¶¶ 13–14. He also brings claims for discrimination, retaliation, and negligence. Compl. ¶ 13. Plaintiff alleges that Defendant PCC received notice of his tort claims on August 9, 2017. Compl. ¶ 4.

         Plaintiff alleges injury stemming from his dismissal, including the “stigma of applying and attending other higher education institutions;” humiliation; damage to his reputation; anguish; “injury to his employment and business relation”; loss of freedom, energy, wages, and money; and the “ability to protest, attend public meetings, [and] use of libraries.” Compl. ¶ 14. Plaintiff seeks economic and non-economic damages up to $500, 000. Compl. ¶¶ 15–16. Plaintiff also seeks equitable relief, including a declaration that Defendants violated Plaintiff’s rights, reinstatement as a student at PCC, and an injunction prohibiting further unlawful acts. Compl. ¶ 16.

         STANDARDS

         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 & Cty. 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).

         “A statute-of-limitations defense, if ‘apparent from the face of the complaint, ’ may properly be raised in a motion to dismiss.” Seven Arts Filmed Entm't Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir.1980)). “If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim ….” Jones v. Bock, 549 U.S. 199, 215 (2007); see also Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206–07 (9th Cir. 1995) (“A motion to dismiss based on the running of the statute of limitations period may be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.” (internal quotations and citations omitted)). However, “a complaint cannot be dismissed unless it appears beyond a doubt that plaintiff can prove no set of facts that would establish the timeliness of the claim.” Supermail Cargo, 68 F.3d at 1207 (declining to dismiss a ...


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