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Johnson v. City of Portland

United States District Court, D. Oregon

October 3, 2019

ALICIA JOHNSON, in her capacity as Personal Representative of the Estate of TERRELL JOHNSON, Plaintiff,


          Jolie A. Russo United States Magistrate Judge

         Defendants the City of Portland and Samson Ajir move to dismiss plaintiff Alicia Johnson's first, second, and fourth claims under Fed.R.Civ.P. 12(b) for lack of statutory standing. In the alternative, defendants move for a more definite statement in regard to plaintiff's second claim pursuant to Fed.R.Civ.P. 12(e). For the reasons stated below, defendants' motion should be denied.


         This case arises out of the fatal shooting of plaintiff's son, Terrell Johnson, on May 10, 2017, by Portland Police Bureau Officer Ajir.[1] Compl. ¶¶ 8-38 (doc. 1). On May 10, 2019, plaintiff initiated this action alleging claims under 42 U.S.C. § 1983 for excessive force, interference with familial relationships, and unlawful municipal pattern or practice of “violating the Fourth Amendment rights of individuals experiencing mental illness and houselessness.” Id. at ¶¶ 39-54. In addition, plaintiff asserts state law claims for battery and wrongful death. Id. at ¶¶ 55-64.


         Where the plaintiff “fails to state a claim upon which relief can be granted, ” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6); see also Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (“lack of statutory standing requires dismissal for failure to state a claim [under Rule 12(b)(6), whereas] lack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)”) (citation and internal quotations and emphasis omitted). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).

         Under Rule 12(e), “[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e). In other words, “Rule 12(e) motions attack the intelligibility of the complaint, not the lack of detail, and are properly denied where the complaint notifies the defendant of the substance of the claims asserted.” Barnes v. Olive, 2015 WL 5813193, *2 (D. Or. Sept. 30, 2015) (citation and internal quotations omitted). Such motions are “disfavored” and their resolution “is generally left to the district court's discretion.” Id. (citation and internal quotations omitted).


         Defendants argue that plaintiff's first, second, and fourth claims should be dismissed for lack of standing under Oregon's wrongful death statute. Defs.' Mot. Dismiss 3-12 (doc. 9). Specifically, defendants assert that, because plaintiff was not appointed as Mr. Johnson's personal representative until well after this lawsuit was filed, her first, second, and fourth claims are time-barred. Id. Defendants also contend that plaintiff's second claim - alleging municipal liability pursuant to 42 U.S.C. § 1983 - “fail[s] to state allegations showing that Officer Ajir knew or should have known that Terrell Johnson was experiencing mental illness [or houselessness] at the time of his death.” Id. at 13. As a result, defendants argue plaintiff has not adequately plead causation or the existence of an unconstitutional municipal pattern or practice. Id. at 13-14.

         Plaintiff asserts that Oregon probate law governs the issue of standing, such that plaintiff's claims are timely “because the later appointment of her as Personal Representative relates back to the filing.” Pl.'s Resp. to Mot. Dismiss 2-4 (doc. 16) (citing Or. Rev. Stat. § 114.255 and Rennie v. Pozzi, 294 Or. 334, 656 P.2d 934 (1982)). In their reply, defendants “agree that plaintiff's claims as the personal representative relate back, ” although on different grounds. Defs.' Reply to Mot. Dismiss 2-3 (doc. 17).

         In light of defendants' concession, the sole issue before the Court is whether plaintiff's second claim is so vague and indefinite that defendants cannot ascertain its nature and therefore fashion a response. To that end, defendants contend: (1) the “only factual allegation [concerning Mr. Johnson's] mental health crisis” is that “he had been undergoing some form of mental health crisis” and “had previously sought help from medical professionals”; and (2) there are no facts demonstrating “whether Mr. Johnson was actually houseless or homeless.” Defs.' Mot. Dismiss 14 (doc. 9). Plaintiff's brief is does not explicitly address Fed.R.Civ.P. 12(e). See generally Pl.'s Resp. to Mot. Dismiss 2-4 (doc. 16).

         Regardless, an independent review of the complaint reveals myriad allegations relating to Mr. Johnson's mental state on the day in question, as well as facts sufficient to establish Officer Ajir's knowledge of Mr. Johnson's mental state and potential lack of housing. See Barnes, 2015 WL 5813193 at *1-3 (denying the defendant's Rule 12(e) motion, despite the fact that the plaintiff failed to file an opposition, where there was nothing ambiguous about the pleadings). Significantly, plaintiff recounts in great detail the events leading up to Mr. Johnson's death, including that: “Mr. Johnson had tried to get drug treatment, but was told he had to get mental health treatment first”; “[w]hen Mr. Johnson had sought help at a mental health clinic, he was kicked out for drawing on a chair”; he was repeatedly observed “laying down on a patch of grass by the Flavel MAX Station”; he silently chased an individual departing from the MAX Station for no apparent reason and then, just as abruptly, ceased pursuit to return “to stand by a fence by the MAX platform”; an eyewitness to the randomized pursuit contacted 911 and described Mr. Johnson as “crazy” and “homeless”; and Mr. Johnson was passive and avoidant during his interaction with Officer Howell, the first Officer to arrive on scene. Compl. ¶¶ 8-17 (doc. 1).

         The complaint also reflects that Officer Ajir responded to the 911 call and thus had firsthand knowledge of reports indicating Mr. Johnson was “crazy” and “homeless, ” and otherwise engaging in strange behaviors. Id. at ¶¶ 11, 15-18.

         Moreover, plaintiff identifies Portland Police Bureau directives relating to “bias-based policing, ” interacting with and identifying individuals who may be dealing with mental health issues, the proper use of force, and foot pursuits. Id. at ¶¶ 18-25. In addition to delineating the precise terms of these policies, plaintiff describes how they were violated through defendants' interactions with Mr. Johnson. Id. at ¶¶ 26-34. Finally, plaintiff cites to a 2012 letter published by the United States Department of Justice “concluding that the City of Portland and the Portland Police ‘too frequently' used a higher level of force than necessary on individuals suffering from actual or perceived mental ...

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