United States District Court, D. Oregon
ALICIA JOHNSON, in her capacity as Personal Representative of the Estate of TERRELL JOHNSON, Plaintiff,
CITY OF PORTLAND; SAMSON AJIR; and JOHN DOES 1-5, Defendants.
FINDINGS AND RECOMMENDATION
A. Russo United States Magistrate Judge
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.
case arises out of the fatal shooting of plaintiff's son,
Terrell Johnson, on May 10, 2017, by Portland Police Bureau
Officer Ajir. 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.
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).
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
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.
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).
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).
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).
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.
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