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Stone v. Van Wormer

United States District Court, D. Oregon, Portland Division

December 26, 2019

BRIAN G. STONE, Plaintiff,
TYLER VAN WORMER, Deputy Sheriff Clackamas County, Defendants.

          Brian G. Stone Plaintiff Pro Se

          Stephen L. Madkour Scott C. Ciecko Office of Clackamas County Counsel Attorneys for Defendant

          OPINION & ORDER


         Plaintiff 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.


         Plaintiff's 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.

         Plaintiff 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.

         Plaintiff 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.


         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 & 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.

         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).


         Defendant now moves to dismiss Plaintiff's claims under Rule 12(b)(6). The Court addresses each claim below.

         I. ...

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