United States District Court, D. Oregon, Portland Division
BRIAN G. STONE, Plaintiff,
TYLER VAN WORMER, Deputy Sheriff Clackamas County, Defendants.
G. Stone Plaintiff Pro Se
Stephen L. Madkour Scott C. Ciecko Office of Clackamas County
Counsel Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
Brian G. Stone brings this 42 U.S.C. § 1983 action
against Defendant Clackamas County Deputy Sheriff Tyler Van
Wormer. This matter comes before the Court on Defendant's
Motion to Dismiss [ECF 23] Plaintiff's Second Amended
Complaint (“SAC”). For the reasons below, the
Court GRANTS Defendant's Motion to Dismiss.
initial Complaint, which named Van Wormer and Clackamas
County Sheriff Craig Roberts as Defendants, alleged that his
“civil rights were violated by racial profiling
involving a stop by deputy Van Wormer 01/30/2018 he in fact
pulled me over because of racial profiling.” Compl. 4,
ECF 1. Construing the Complaint liberally, the Court assumed
that Plaintiff intended to plead a § 1983 claim against
Van Wormer and a supervisory liability claim against Roberts.
See Opinion & Order, at 4-5 (Feb. 5, 2019), ECF
4. The Court further assumed that Plaintiff alleged selective
enforcement of the law based on race. However, the Court
found that Plaintiff failed to: (1) show he belonged to a
protected class; (2) make factual allegations to support his
assertion that he was pulled over because of racial
profiling; and (3) allege facts showing discriminatory intent
by Defendant Van Wormer. Id. As for the supervisory
liability claim against Roberts, the Court found that
Plaintiff failed to allege specific facts sufficient to state
a claim. Id. at 5. Thus, after explaining the
relevant law and pleading deficiencies, Plaintiff's
initial Complaint was dismissed with leave to amend.
Id. at 6.
filed a First Amended Complaint, ECF 9, on March 7, 2019.
Liberally construing that pleading, the Court assumed
Plaintiff asserted six claims against Defendants Van Wormer
and Roberts pursuant to § 1983. Plaintiff's first
claim alleged racial profiling by Defendant Van Wormer in
violation of the Equal Protection Clause of the Fourteenth
Amendment. See FAC 1, 4. Plaintiff's second
claim alleged a failure to follow internal department
procedures for administering a Breathalyzer test.
Id. at 2-3. Plaintiff's third and fourth claims
alleged denial of criminal discovery and compulsory process
in his criminal trial proceedings. Id. at 3-4.
Plaintiff's fifth claim alleged Defendant Roberts failed
to supervise Defendant Van Wormer. Id. at 4.
Finally, Plaintiff's sixth claim alleged a violation of
the Ninth Amendment. Id. In a September 4, 2019
Opinion & Order, ECF 20, the Court dismissed the first
five claims with leave to amend but dismissed his Ninth
Amendment claim with prejudice. The Court again explained the
relevant law and pleading deficiencies.
then filed his SAC, ECF 22. The Court again assumes that
Plaintiff asserts his claims under § 1983.
Plaintiff's first claim alleges a violation of the Ninth
Amendment. SAC at 7. Plaintiff's second claim alleges
that he was not permitted to obtain discovery or witnesses in
the criminal trial against him in violation of the Sixth
Amendment. Id. at 6, 8. Plaintiff's third claim
alleges that a lifetime revocation of his driver's
license constitutes cruel and unusual punishment in violation
of the Eighth Amendment and does not comport with Oregon
Sentencing Guidelines. Id. 6-7. Plaintiff's
fourth claim alleges that Clackamas County failed to follow
“[c]riminal [p]rocedure [r]ights” and that
Defendant Van Wormer falsified evidence in violation of the
Due Process and Equal Protection Clauses of the Fourteenth
Amendment. Id. 8-9.
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.
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
now moves to dismiss Plaintiff's claims under Rule
12(b)(6). The Court addresses each claim below.