United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE
James-Brent: Alvarez, proceeding pro se, filed this action
against defendants University of Oregon, University of Oregon
Police Department ("UOPD"), Luke Sitts, Geri
Brooks, Scott Geeting, Stephen Barrett, Matthew Carmichael,
and Michael H. Schill. Plaintiffs claims arise from a traffic
stop that led to his arrest and from defendants' response
to complaints plaintiff made to UOPD after his arrest. Before
the Court are defendants' motions to dismiss (docs. 18,
20) and plaintiffs motions for leave to amend (docs. 26, 29,
Amended Complaint is written in a combination of what
plaintiff calls "plain language" and
"C.-S.-S.-C.-P.-S.-G.-P." for short. First Amend.
Compl. 3. Both employ unusual syntax and use
of punctuation, which makes the complaint difficult to
comprehend. For example, the facts section, which is written
in plain language, alleges:
~ 41 [: ~3-February-2019, claimant writes an
352.1211-3), of acceptance to settle the
UOPD-contract-document-offers, with the conditions of the
UOPD-performance of stopping and correcting their documents
(TITLE~42: USC ~ 1986), for fraudulent and mis-leading
statements (TITLE~18: USC ~ 1001) using fictitious-conveyance
language with the syntax-grammar errors, and with the
boxing-errors (Black Law Dictionary 5th Edition-P591), and
with the fictitious name or address (TITLE~18: USC ~1342),
and otherwise as marked on their
claims-contract-offers-documents. For the closure (FRCP
~26-e) of the definition for the words of the UOPD-documents,
as well as which dictionary or styles-manual is being used by
the UOPD. Furthermore, complete-validation of the
claim-charge-debt made, with the sworn evidence they (the
accused) are acting with their official-capacity, and with
the proof of their mandate and bond, the oaths and titles of
the parties, and with the statutes written in the
C.-S.-S.-C.-P.-S.-G.-P. is asked for by the claimant. A
fee-schedule for having to deal with this matter is
instituted by the Claimant, and accused are given twenty-one
days to respond. Sent USPS by registered mail No.
RA535207168US to the accused:].
Id. at 8 (boldface in original). The claims for
relief, which appear to be written in
C.-S.-S.-C.-P.-S.-G.-P., include allegations like:
~53: FOR THE CHANGING-FACTS INTO THE VERBS, PRONOUNS AND
ADJECTIVES ARE WITH THEE DAMAGE-CLAIM OF THE
FICTIONAL-SYNTAX-MODIFICATIONS, CORRUPT-AUTHORITIES, AND
FRADULANT-SYNTAX OF THE GRAMMAR-LANGUAGE-CLAIMS WITH THE
STEALING, THEFT, TORT, BEZZLEMENT AND RAPE OF THE EQUITY,
FREEDOMS AND COMMUNICATION-LANGUAGE-CLAIMS OF THE CLAIMANT.
Id. at 10.
following facts are taken from the Amended Complaint, which
the Court has construed in plaintiffs favor as best it can.
was traveling in his car when he was stopped by UOPD Officer
Sitts for operating the car without a license plate. Officer
Sitts began to question plaintiff, and plaintiff invoked his
Miranda rights. Shortly after that, UOPD Officers
Geeting, Brooks, and Barrett arrived to provide back up.
Officer Geeting began to question plaintiff. Plaintiff handed
the officers a document that he alleges was a contract. Then
Officer Barrett began questioning plaintiff. Plaintiff then
asserted his right to counsel, right to remain silent, and
"right to be free of the un-warranted search and
seizure." Id. at 6.
Sitts then warned plaintiff that his car would be towed
unless plaintiff provided his driver's license,
registration, and proof of insurance. When plaintiff refused,
Officer Sitts informed plaintiff that he would issue
plaintiff traffic citations and that plaintiffs car would be
towed. Then, "[w]ith the showing of deadly
weapons," Officer Sitts ordered plaintiff out of the
car. Id. at 7.
plaintiff complied with that order, Officers Sits, Geeting,
Barrett, and Brooks "attempt[ed] to seize [plaintiff]
with physical force," "[w]ithout placing [him]
under arrest, without communication, without cause to use
excessive-force [sic], and without warning."
Id. Plaintiff began to resist because he did not
understand what was happening. Plaintiff "applied"
"years of combat-training [sic] . . . without
awareness, hesitation, or thought." Id. As soon
as plaintiff realized what he was doing, he immediately
the time plaintiff stopped, Officers Brooks, Barrett, and
Sitts had tased plaintiff. Plaintiff signaled for and asked the
officers to stop and used "body language to show he
[was] surrendering," but the officers continued to tase
him "while he [was] still being physically
assaulted." Id. Specifically, the officers
"slam[ed] him to the ground" to handcuff him,
"still shooting him with electricity." Id.
The officers then told plaintiff that he was under arrest,
read him his Miranda rights, and searched the car.
was hospitalized, issued five traffic tickets, and charged
with three offenses-interference with a peace officer,
resisting arrest, and assault of police officers. Upon his
release from the hospital, plaintiff was transferred to Lane
County Jail, where he was held overnight and released the
couple of weeks later, plaintiff sent a
352.121-3)" to UOPD. Id. at 8. Plaintiff sent a
copy of the complaint to the Lane County District Attorney
and tried to file a certified copy of his
"contract-claim," but the court clerks refused,
"[c]laiming nothing had been docketed in the matter at
this time." Id.
the next couple of days, plaintiff appeared at Lane County
Circuit Court and then at the Eugene Municipal Court, to
comply with the instructions on his traffic citations, but
his citations were not on the docket at either court.
month later, plaintiff had received no response to the
complaint he lodged with UOPD, so he sent a
"NOTICE OF DEFAULT" to University
of Oregon President Michael Schill, UOPD Chief of Police
Matthew Carmichael, and Officer Sitts. Id. (boldface
in original). Plaintiff later sent these defendants a
"2nd NOTICE OF DEFAULT," "FINAL
DEFAULT NOTICE” and finally a
"NOTICE OF ESTOPPEL." Defendants
did not respond to any of the documents.
then filed this suit alleging that defendants had violated
his constitutional rights and federal law. When defendants
moved to dismiss the Complaint, plaintiff responded by filing
an Amended Complaint (doc. 19). Defendants then moved to
dismiss the Amended Complaint, and plaintiff responded with a
Motion for Leave to File a Second Amended Complaint (doc.
26). Later, plaintiff filed a Motion for Leave to File an
Updated Second Amended Complaint (doc. 29) and a Memorandum
in Support (doc. 36), which provides a proposed Revised
Second Amended Complaint (doc. 36 Ex 1).
considering a motion to dismiss, a court construes a
complaint in favor of the plaintiff and takes all factual
allegations as true. Odom v. Microsoft Corp., 486
F.3d 541, 545 (9th Cir. 2007). "[F]or a complaint to
survive a motion to dismiss, the non-conclusory 'factual
content/ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to
relief." Moss v. U.S. Secret Serv., 572 F.3d
962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). A "formulaic recitation of
the elements of a cause of action" or "naked
assertions devoid of further factual enhancement" and
not sufficient to state a plausible claim. Iqbal,
556 U.S. at 678. "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id.
"Dismissal under Rule 12(b)(6) is proper only when the
complaint either (1) lacks a cognizable legal theory or (2)
fails to allege sufficient facts to support a cognizable
legal theory." Zixiang Li v. Kerry, 710 F.3d
995, 999 (9th Cir. 2013).
plaintiff appears pro se, the court must carefully
construe the pleadings and afford the plaintiff any benefit
of the doubt. See Erickson v. Pardus, 551 U.S. 89,
94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th
Cir. 2002). This rule of liberal construction is
"particularly important" in civil rights cases.
Hendon u. Ramsey, 528 F.Supp.2d 1058, 1073 (S.D.
Cal. 2007) (citing Ferdik v. Bonzelet, 963 F.2d
1258, 1261 (9th Cir, 1992)); see also Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (stating that
because "Iqbal incorporated the
Twombly pleading standard and Twombly did
not alter the courts' treatment of pro se
filings" the court must continue to construe pro
se filings liberally"). When giving liberal
construction to a pro se civil rights complaint,
however, the court "'may not supply essential
elements of the claim that were not initially
pled.'" Brims v. Nat'l Credit Union,
Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting
Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.
1982)); Calhoun v. Portland Police Bureau, No.
3:17-cv-01020-MO, 2018 WL 1413969, at *1 (D. Or. Mar. 21,
it is absolutely clear that no amendment can cure the defect,
... a pro se litigant is entitled to notice of the
complaint's deficiencies and an opportunity to amend
prior to dismissal of the action.'" Garity v.
APWU Nat'l Labor Org., 828 F.3d 848, 854 (9th Cir.
2016) (alteration in original); Ramirez v. Galaza,
334 F.3d 850, 861 (9th Cir. 2003); Karim-Panahi v. Los
Angeles Police Dep't., 839 F.2d 621, 623-24 (9th
Cir. 1988); Ferdik, 963 F.2d at 1261.
move to dismiss the complaint, and plaintiff seeks the
Court's leave to file a second amended complaint. I will
address each set of motions in turn.
Defendants' Motions to Dismiss
Amended Complaint asserts claims for violation of plaintiffs
constitutional rights under 42 U.S.C. § 1983 (claim one)
and conspiracy to deprive plaintiff of rights under 42 U.S.C.
§§ 1985 and 1986 (claims two and three) and a claim
under the Anti-Terrorism Act 18 U.S.C. § 2331, et seq.
(claim four). Defendants assert that each claim fails to state a
claim, that plaintiffs § 1983 claim is barred by state
sovereign immunity, and that, to the extent that plaintiff
alleges a claim against individual defendants in their
individual capacity, they are entitled to qualified immunity.
Defendants ask the Court to dismiss this case with prejudice.
Section 1983 Claim
appears to assert a claim against all defendants for
constitutional violations under 42 U.S.C. § 1983.
§ 1983 Claim against University of Oregon and
assert that the § 1983 claims against University of
Oregon, and UOPD, and any university officials acting in
their official capacity are barred by the Eleventh Amendment.
The Eleventh Amendment provides that a state is immune from
suit in federal court unless Congress has abrogated the
state's immunity by appropriate federal legislation or
unless the state has waived its immunity. Va. Office for
Prot. & Advocacy v. Stewart, 563 U.S. 247, 253-54
(2011). This grant of immunity covers not the just state
itself, but also state entities that are considered an
"arm" of the state. P. R Aqueduct & Sewer
Auth. v. Metcalf, 506 U.S. 139, 144 (1993).
University of Oregon "is an arm of the State of Oregon
for Eleventh Amendment immunity purposes." Rounds v.
Oregon State Bd. of Higher Educ.,166 F.3d 1032, 1035
(9th Cir. 1999). UOPD, a department of the university, is
also an arm of the state. Neither defendant has waived its
Eleventh Amendment immunity. Nor has Congress abrogated
Oregon's Eleventh Amendment immunity. See Will v.
Michigan Dep't of State Police,491 U.S. 58, 66