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Alvarez v. University of Oregon

United States District Court, D. Oregon, Eugene Division

January 6, 2020

JAMES-BRENT: ALVAREZ, Plaintiff,
v.
UNIVERSITY OF OREGON, et al., Defendants.

          OPINION AND ORDER

          ANN AIKEN UNITED STATES DISTRICT JUDGE

         Plaintiff 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, 36).

         BACKGROUND

         The Amended Complaint is written in a combination of what plaintiff calls "plain language" and "CORRECT-SENTENCE-STRUCTURE-COMMUNICATIONS- PARSE-SYNTAX-GRAMMAR," or "C.-S.-S.-C.-P.-S.-G.-P." for short. First Amend. Compl. 3.[1] 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 unilateral-contract-claim-complaint (ORS 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).[2] 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.

         The following facts are taken from the Amended Complaint, which the Court has construed in plaintiffs favor as best it can.

         Plaintiff 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.

         Officer 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.

         When 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 stopped resisting.

         But, by the time plaintiff stopped, Officers Brooks, Barrett, and Sitts had tased plaintiff.[3] 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.

         Plaintiff 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 next day.

         A couple of weeks later, plaintiff sent a "unilateral-contract-claim-complaint (ORS 352.121-3)" to UOPD.[4] 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.

         Over 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.

         About a 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.

         Plaintiff 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).

         STANDARDS

         When 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).

         When a 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, 2018).

         "'Unless 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.

         DISCUSSION

         Defendants 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.

         I. Defendants' Motions to Dismiss

         The 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[5] 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.

         A. Section 1983 Claim

         Plaintiff appears to assert a claim against all defendants for constitutional violations under 42 U.S.C. § 1983.

         1. § 1983 Claim against University of Oregon and UOPD

         Defendants 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).

         The 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 (1989) ...


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