United States District Court, D. Oregon
CAMARATA PRO SE PLAINTIFF
J. ELLIOTT MILLER NASH GRAHAM & DUNN LLP ATTORNEY FOR
OPINION & ORDER
A. HERNÁNDEZ United States District Judge.
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.
enrolled in a computer class at Portland Community College
(“PCC”) in the fall of 2016. Compl. ¶
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.
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.
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.
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.
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.
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.
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
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 ...