# Alvarez v. University of Oregon

> District Court, D. Oregon · January 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10391559

## Case

- **Court:** District Court, D. Oregon
- **Decided:** January 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10391559

## How later opinions describe it (automated extraction)

- 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”
- emphasizing that the phrase “equal protection” used in the second clause of § 1985(2) and first clause of § 1985(8) “require[s] an allegation of class-based animus for the statement of a claim under that clause”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

JAMES-BRENT: ALVAREZ, Case No. 6:19-cv-O1071-AA
OPINION AND ORDER
Plaintiff,
vs.
UNIVERSITY OF OREGON, et al.,
Defendants,

AITKEN, 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. Plaintiff's 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).

Deen td MDINTAN ARIY APNYD

BACKGROUND
The Amended Complaint is written in a combination of what plaintiff calls
“plain language” and “CORRECT-SENTENCE-STRU CTURE-COMMUNICATIONS-
PARSE-SYNTAX-GRAMMAR,” or “C.-S.-S,-C.-P.-5.-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:
~ 4] [: ~3-February-2019, claimant writes an unilateral-contract-claim-
complaint (ORS 352,121!-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 ~1842), 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.-8.-C.-P.-8,-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:

1 Plaintiffs “Addendum for definitions” explains that text found between “[: :] & ()” are in
“plain language,” “not C.-5,-5.-C.-P.-8.-G.-P.” and that text without “use of boxing” is in C.-5,-8,-C.-P.-
8.-G.-P, Amend. Compl. 3.
2 The superscript in “ORS 352.1211-3” was not accompanied by a footnote.

fYDTATICVAT AKTMH MmeoMEyD

~§3: 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]

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under arrest, without communication, without cause to use excessive-force [sic], and
without warning.” Jd. Plaintiff began to resist because he did not understand what
was happening. Plaintiff “applied” “years of combat-training [sic] . . . without
awareness, hesitation, or thought.” Jd. 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. 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.” Jd. 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,”

3 Plaintiff alleges that he was “shot multiple times with electricity” by the officers.
4 ORS 352.121(3) provides: “When a university establishes a police department and
commissions one or more employees as police officers, the president of the university, in cooperation
with the chief of the police department, shall establish a process by which the university will receive
and respond to complaints involving the policies of the department and the conduct of the police
officers.”

nH... A CAYTDTATT OAT ARTI MODMNMoUp

but the court clerks refused, “[c]laiming nothing had been docketed in the matter at
this time.” Jd.
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, plaimtiff 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

TK OPTIITRITART ARTIA ADTDD

F.8d 541, 545 (9th Cir. 2007). “[Flor 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. /qbal, 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.” Jd. “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 [1
uv. 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
vu. Ramsey, 528 F. Supp. 2d 1058, 1073 (S.D. Cal. 2007) (citing Ferdik v. Bonzelet, 963
F.2d 1258, 1261 (8th 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 pre se civil
rights complaint, however, the court “may not supply essential elements of the claim

Daw. 2 MDIATTINAT ARTIT NOONE

that were not initially pled.” Bruns v. Natl Credit Union Admin., 122 F.3d 1251,
1257 (Sth Cir. 1997) (quoting fvey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)
); Calhoun v. Portland Police Bureau, Case 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 Natl Labor Org., 828 F.3d
848, 854 (9th Cir. 2016) (alteration in original); Ramirez v. Galaza, 334 F.8d 850, 861
(9th Cir. 2003); Karim-Panahi v. Los Angeles Police Dep't., 839 F.2d 621, 623-24 (Oth
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® 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

5 As noted, defendants have filed two motions to dismiss. Because the second motion
incorporates arguments from the first, the Court will consider the relevant arguments from both
motions.

Daawn CYDIATI SCAT ARTI MmMDoMNEP

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
vielations 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 1082, 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) (“Congress, in passing § 1983,
had no intention to disturb the States’ Eleventh Amendment Immunity.”).

Oo) OADTATIAART AATIT ADMNDD

Because University of Oregon and UOPD are not subject to suit under § 1983,
the § 1983 claim against the university and UOPD must be dismissed without leave
to amend,
2. § 1983 Claim against Individual Defendants
Defendants also argue that the § 1983 claim against the individual
defendants-—-Officers Sitts, Brooks, Geeting, and Barrett; Chief Carmichael; and
President Schill—are barred, in their entirety, by the Eleventh Amendment because
defendants were acting in their official capacity.
Although state officers acting in their official capacity are entitled to Eleventh
Amendment Immunity, the Eleventh Amendment does not bar a federal court from
granting prospective injunctive relief against an officer of the state who acts outside
the bounds of their authority. Ex Parte Young, 209 U.S. 123 (1908). Thus, the Court
may hear plaintiffs civil rights claims against the individual defendants if he asks
for prospective injunctive relief from these defendants in their official capacities.®
The Court may also hear plaintiffs claims for monetary damages brought
against the individual defendants in their individual capacities. See Pena v. Gardner,
976 F.2d 469, 473 (9th Cir, 1992) ([T]he eleventh amendment does not bar a suit
seeking damages against a state official personally.”), A plaintiff can “bring an action
under section 1983 against state officials in their individual capacities, even if those

8 The Amended Complaint does not appear to seek this kind of relief. The only prospective
injunctive relief sought are court orders (1) that a portion of plaintiffs monetary damages “he placed
in a trust overseen by the Union State Oregon and its Attorney General... ., and to be used for the
education and training of all law enforcement on the Federal and State laws” and (2) that the Lane
County District Attorney's Office remove “all pending charges against claimant in any related matters”
and that “the incident [be removed] off all public platformsf[.]” Amend, Compl, 12.

TH TF CATTARITT CANT DNeD

officials were performing their governmental duties when they committed the alleged
wrongs.” Price v. State of Hawaii, 939 F.2d 702, 706 (Sth Cir. 1991). “[T]he phrase
‘acting in their official capacities’ is best understood as a reference to the capacity in
which the state officer is sued, not the capacity in which the officer inflicts the alleged
injury.” Hafer v. Melo, 502 U.S, 21, 26 (1991). To state a § 1983 claim against a state
official seeking te impose personal liability on that official, “a plaintiff must show only
that ‘the official, acting under the color of state law, caused the deprivation of a
federal right.” Suever v. Connell, 579 F.8d 1047, 1060 (Sth Cir. 2009) (quoting Hafer,
502 U.S. at 25). In such cases, liability does not “turn on whether the state official
acted within his or her authority or outside of it; the only issue is whether the conduct
was undertaken under color of state law.” Jd. at 1060-61.
Thus, the Court will turn to whether the Amended Complaint states a claim
under § 1983. Defendants argue that it does not because the amended complaint does
not allege “which constitutional rights were violated, when they were violated, how
they were violated, or who violated them.” Mot. to. Dismiss P’s First Am. Compl. at
7. They also argue that any individual capacity claims against the individual
defendants are barred by qualified immunity for the same reason.
Section 1983 “provides a federal cause of action against any person who, acting
under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526
U.S. 286, 290 (1999). To maintain a claim under § 19838, “a plaintiff must both □□□
allege the deprivation of a right secured by the federal Constitution or statutory law,

Dae, Th NMDINTITNAT ANTTR NVNnPD

and (2) allege that the deprivation was committed by a person acting under color of
state law.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
Although the allegations under the header for plaintiffs § 1983 claim are
sparse,’ liberally construed, the fact section appears to assert that the individual
UOPD officers violated plaintiff's rights under the Fourth Amendment by arresting
plaintiff without a warrant or probable cause, using excessive force during plaintiffs
arrest, and seizing and searching plaintiffs car after his arrest.
Whether a warrantless arrest is constitutionally valid turns on whether, at the
time of arrest, the officer had probable cause to make the arrest. Payer v. Vaughn,
649 F3d 1061, 1064 (9th Cir. 2011). The Fourth Amendment requires a standard of
reasonableness, not certainty, and a sufficient probability is the touchstone of
reasonableness. Hill v. California, 401 U.S. 797, 804 (1971). Arresting officers have
probable cause tf, at the time of arrest, the facts and circumstances within their
knowledge and of which they have reasonably trustworthy information, were
sufficient to warrant a prudent man in believing that the arrested person had
committed or was committing an offense. Conner v. Hetman, 672 F3d 1126, 1132 (9th

7 The claim consists of a single allegation under a joint header for the first and second claims
for relief:
FOR THE DEPRIVING OF THE CLAIMANTS-CONSTITUTIONAL-RIGHTS, AND
WITH THE COLORING OF THE LAW WITH THE USE OF THE FRAUDULANT-
OREGON-STATUTES, AND WITH THE CONSPIRACY WITH THE FALSE AND
MIS-LEADING STATEMENTS AND WITH THE DEPRIVING THE CLAIMANT OF
THE EVIDENCE AND A WITNESS BY THE U.O.-UOPD-OFFICERS: FOR THE
CIVIL REMEDY IS $50,010,000.00 USSD.
Amend, Compl. p. 9-10.

Donen 41) MDIATINAT ARID ADNED ,

Cir. 2012). The court will consider all the facts known to the officers and consider all
the inferences that could be drawn by them before arrest. See id. at 1181.
In excessive force cases, courts consider whether officers’ actions were
“objectively reasonable” under the totality of the circumstances. Graham v. Conner,
490 U.S. 386, 388 (1989). The reasonableness of the force used to effect a particular
seizure is determined by “carefulfly] balancing ... ‘the nature and quality of the
intrusion on the individual's Fourth Amendment interests’ against the countervailing
governmental interests at stake.” Id. at 396 (quoting Tennessee v. Garner, 471 □□□□
1, 8 (1985)). Courts consider the governmental interests at stake by looking at the
following nonexclusive factors: “(1) how severe the crime at issue is, (2) whether the
suspect posed an immediate threat to the safety of the officers or others, and (8)
whether the suspect was actively resisting arrest or attempting to evade arrest by
flight.” Mattos v. Agarano, 661 F.3d 4338, 441 (8th Cir. 2011). The second of the three
is the “most important” factor, and “there must be objective factors to justify” an
officer’s concern that the suspect posed an “immediate threat.” Id. at 441-42.
Whether officers used excessive force is ordinarily a question of fact and
therefore reserved for the jury. Santos v. Gates, 283 F.3d 846, 853 (9th Cir. 2002);
Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994). Thus, excessive force cases are
rarely suited for summary judgment, let alone dismissal under Rule 12(b)(6).
Plaintiff alleges that he was stopped by UOPD for failing to have a license
plate on his car and that he handed the officers a document and asserted his right to
counsel, right to silence, and right to be free of unwarranted searches and seizures.

Doo da ONDTRTTARY ARITA ADATID

Officer Sitts ordered plaintiff to provide his driver's license, insurance, and
registration and eventually ordered plaintiff out of the car. When plaintiff complied,
the officers “attempt[ed] to seize [plaintiff] with physical force” and he fought back,
applying “years of combat-training” but stopped almost immediately. Amend. Compl.
7. The officers then responded by tasing plaintiff and slamming him to the ground,
even after plaintiff showed his compliance physically and verbally, and by finally
arresting him. Plaintiff was charged with interference with a peace officer, resisting
arrest, and assault of police officers,
When liberally construed, the Complaint states sufficient facts to support a
claim of excessive force against the officers. The same cannot be said for plaintiffs
Fourth Amendment challenge to his arrest. By the time officers arrested him, he had
refused to provide documentation to the officers and had used force against the
officers. Plaintiffs allegations, thus, show that the officers had probable cause to
arrest him. Plaintiffs claim of unlawful arrest must be dismissed.
Plaintiff also alleges that the officers searched his car without a warrant and
asserts that the search violated the Fourth Amendment and towed his car without
authorization. Those allegations are too conclusory to state a claim for a violation of
plaintiffs Fourth Amendment rights. There are many exceptions to the warrant
requirement for searches of cars and the Amended Complaint does not state when or
under what circumstances the allegedly unlawful search of his car occurred. See, e.g.,
South Dakota v. Opperman, 428 U.S. 364 (1976) Gnventory search of impounded
vehicle); Arizona v. Gant, 556 U.S. 332, 343-44 (2009) (search of automobile incident

4 RDTRITAAT ARITA ADTTD

to arrest); Collins v. Virginia, __ U.S. __, ___, 188 S. Ct. 1663, 1669-70 (2018)
(automobile exception). And officers may tow a car under the community caretaking
doctrine if, as here, “the driver’s violation of a vehicle regulation prevents the driver
from lawfully operating the vehicle and also if it is necessary to remove the vehicle
from an exposed or public location.” Miranda v. City of Cornelius, 429 F.3d 858, 865
(9th Cir. 2005). Thus, these claims must be dismissed for failure to state a claim.
To the extent that plaintiff seeks to assert § 1983 claims against Chief
Carmichael and President Schill in their individual capacities, those claims are also
dismissed for failure to state a claim. The Amended Complaint does not allege that
either defendant was personally involved in the officer’s alleged use of excessive force.
Nor does it present a link between any particular harm that plaintiff suffered and an
action taken by Carmichael or Schill.
In sum, the Amended Complaint adequately states an excessive force claim
against Officers Sitts, Brooks, Geeting, and Barrett, for which they may be held
individually liable under § 1988. Plaintiffs § 1983 claims against Chief Carmichael
and President Schill and § 19838 claims for any other constitutional violations that
plaintiff sought to assert against the individual UOPD officers are dismissed for
failure to state a claim and on the basis of qualified immunity.®

"8 “Qualified immunity shields federal and state officials from money damages unless a plaintiff
pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the
right was clearly established at the time of the challenged conduct.” Aschroft v. al-Kidd, 563 U.S. 731,
735 (2011). As mentioned, defendants argue that the individual defendants are entitled to qualified
immunity from plaintiffs § 1983 claim based on plaintiff's failure to allege facts demonstrating that
any violation of a constitutional right occurred. They did not directly address plaintiff's excessive force
claim and did not address the second, “clearly established” prong of the qualified immunity analysis.

Dawn ta TYDTATICVSN. AWAIT MRED

3. Leave to Amend
Because plaintiff could allege other violations of his rights and cure the
deficiencies discussed above by alleging additional facts, he shall have leave to amend
his § 1983 claim. When amending his claim, plaintiff should be careful to explain
what rights he believes were violated and, for each right, the defendants who violated
that right and the specific actions they took to violate that right.
B. Conspiracy Claims
Plaintiff appears to allege that the individual UOPD officers conspired to
violate his rights and that University of Oregon, UOPD, President Schill, and Chief
Carmichael knew about this conspiracy because of the complaint he submitted.
1, § 1985 Claims
Plaintiff asserts claims under 42 U.S.C. § 1985, which prohibits conspiracies
to interfere with certain civil rights. Under the broadest reading of the Amended
Complaint, the allegations appear to relate to the second clause of subsection (2),
which concerns conspiracies to obstruct the course of justice in state courts, and the
first clause of subsection (3), which concerns conspiracies to prevent state authorities
from securing a person’s equal protection of the laws, Kush v. Rutledge, 460 U.S. 719,
725 (1988).
To state a claim under these clauses a plaintiff must allege, among other
things, “specific facts to support the existence of the claimed conspiracy,” racial or
class-based discriminatory intent, and underlying violation of federal rights. See
Burns vu. Cnty. of King, 886 F.3d 819, 821 (9th Cir. 1989) (conspiracy must be alleged

Dawn 1K CYVDTRITSOAAT ARTI fPiPemMmnue

with specificity); Bretz v. Kelman, 773 F.2d 1026, 1030 (9th Cir. 1985) (emphasizing
that the phrase “equal protection” used in the second clause of § 1985(2) and first
clause of § 1985(8) “require[s] an allegation of class-based animus for the statement
of a claim under that clause”).
Plaintiff has not alleged facts to support the existence of any agreement
between defendants to violate plaintiffs rights. And the amended complaint lacks
any allegations of racial or class-based animus, or racial or class-based
discrimination. Finally, plaintiff fails to allege an underlying violation of his rights
under either clause. The second clause of § 1985(2) applies to conspiracies
for the purpose of impeding, hindering, obstructing, or defeating, in any
manner, the due course of justice in any State or Territory, with intent
to deny to any citizen the equal protection of the laws, or to injure him
or his property for lawfully enforcing, or attempting to enforce, the right
of any person, or class of persons, to the equal protection of the laws[.]
The first clause of § 1985(8) applies to conspiracies
for the purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws; or for the purpose of preventing or
hindering the constituted authorities of any State or Territory from
giving or securing to all persons within such State or Territory the equal
protection of the laws].}
Liberally construing the amended complaint, these claims may relate to
plaintiffs allegations about the notices he sent to UOPD, President Schill, and the
Lane County District Attorney or his allegations about his visits to the Lane County
Circuit Court and Eugene Municipal Court. But the amended complaint does not
specify what defendants did to “impede, hinder, obstruct, or defeat... the due course

kN. ... £ATITARTITSCr’AL ACRTTS. OFiti3TtkUit

of justice” in state Court or to prevent state authorities from securing plaintiff's equal
protection of the laws.
Because plaintiff has failed to plead the existence of a conspiracy, racial or
class-based discrimination, and an underlying violation of his civil rights, plaintiffs
§ 1985 claim must be dismissed.
2. § 1986 Claims
A plaintiffs failure to state a viable claim under § 1985 defeats the plaintiffs
claim under § 1986 as well. Karim-Panahi, 839 F.2d at 626 (“A claim can be stated
under section 1986 only if the complaint contains a valid claim under section 1985.”).
Because plaintiff failed to state a claim against the UOPD officers under § 1985, his
§ 1986 claim against University of Oregon, UOPD, President Schill, and Chief
Carmichael must also be dismissed.
3. Leave to Amend
Plaintiffs § 1985 and § 1986 claims against University of Oregon and UOPD
are barred by Eleventh Amendment immunity and must be dismissed with prejudice.
Cerrato v. San Francisco Cmty. Coll. Dist., 26 F.3d 968, 972, 975 (9th Cir. 1994) (the
Eleventh Amendment bars §§ 1983, 1985, and 1986 claims against states)
But because plaintiff could cure the defects in his § 1985 and §1986 claims against
the individual UOPD officers, President Schill, and Chief Carmichael by amendment,
he shall have leave to amend those claims.

Dae UOURATTATTART ARTTY ADNATD

C. Anti-Terrorism Act Claim
Plaintiff alleges that, by discriminating against him and using “excessive and
harmful force of life,” defendants “violated” the Anti-Terrorism Act’s civil remedies
provision, codified at 18 U.S.C. § 2883(a). Compl, at 11. Section 2333(a) provides
recovery of treble damages and attorney fees by United States nationals for injuries
sustained “by reason of an act of international terrorism.” 18 U.S.C. § 2333(a).
International terrorism is defined as activities that, among other things:
(C) occur primarily outside the territorial jurisdiction of the United
States, or transcend national boundaries in terms of the means by which
they are accomplished, the persons they appear to intend to intimidate
or coerce, the persons they appear intended to intimidate or coerce, or
the locale in which their perpetrators operate or seek asylum.
Td, at § 2831(1).
Plaintiff does not allege that defendants’ actions occurred outside Eugene,
Oregon, let alone outside the United States. Nor does plaintiff allege that facts to
demonstrate that defendants’ actions “transcend national boundaries” in any way.
Because plaintiff fails to plead an act of international terrorism, his Anti-
Terrorism Act claim must be dismissed. And because it is clear to the Court that
plaintiff could not plausibly allege that the events giving rise to this claim took place
primarily outside the United States or that defendants’ actions had a trans-national
dimension, plaintiff is not entitled to amend this claim.
Il. Plaintiff's Motions to Amend
Plaintiff seeks leave to amend the Amended Complaint and has submitted a
proposed Second Amended Complaint (doc. 26 Ex 1), a proposed Corrected Second

4000 CUDTRATT ARITA ADNAED

Amended Complaint (doc. 29 Ex 1), and a proposed Revised Second Amended
Complaint (doc. 36 Ex 1). Although, as discussed above, plaintiff shall have leave to
amend his complaint, his proposed second amended complaints do not correct the ail
the deficiencies that warrant dismissal of the claims in his Amended Complaint.
The proposed Revised Second Amended Complaint seeks to add a defendant,
Don Morris, a UOPD Captain who was present at the traffic stop and supervised the
actions of the other UOPD officers at that stop. The Revised Second Amended
Complaint asserts four claims: (1) violations of plaintiffs rights under § 1983; (2)
conspiracy to deprive plaintiff of rights under § 1985; (8) conspiracy under § 1986;
and (4) claim for attorney fees under 42 U.S.C. § 1988. Plaintiff does not seek to re-
assert his Anti-Terrorism Act claim.
First, the Court will not permit plaintiff to proceed on his § 1988 claim or any
of the claims against UOPD and University of Oregon. Section 1988 does not provide
a cause of action but, rather, provides for the award of attorney fees once a federal
claim has been adjudicated. And, as explained above, UOPD and University of
Oregon must be dismissed from this action because they are entitled to Eleventh
Amendment immunity.
Turning to plaintiffs conspiracy claims under § 1985 and § 1986, the proposed
Revised Second Amended Complaint seeks to assert § 1985 and § 1986 claims against
President Schill and Chief Carmichael for failing to respond to plaintiffs complaints.
Plaintiff alleges that, by ignoring his complaints, these defendants sought to cover up
the wrong-doings of the UOPD officers and deprived plaintiff of due precess, which

Dp... 3% CADTATITOVAT ARTE MoOoMEo

plaintiff alleges is “conspiracy to [in]terfere with the Plaintiffs civil-rights by the
neglecting of their public-duties[.]’ Doc. 36 Ex 1 at 14-15, 17-18. The proposed
Revised Second Amended Complaint also seeks to assert § 1985 and § 1986 claims
against the individual UOPD officers for neglecting their oath of office by violating
plaintiffs constitutional rights, and, specifically, by attempting a malicious
prosecution and fabricating evidence against plaintiff, and for conspiring to do so.
Doc, 36 Ex 1 at 14-15, 17-18.
Once again, plaintiff has failed to allege facts sufficient to state claims under
§ 1985 and § 1986. In particular, the proposed Revised Second Amended Complaint
has not alleged facts to support the existence of any agreement between defendants
to violate plaintiffs rights. For example, the fact that President Schill and Chief
Carmichael both received copies of plaintiff's complaint and are officials at the same
institution does not demonstrate that these defendants communicated with each
other about the complaint, let alone agreed to ignore it. And, hke the amended
complaint, the proposed Revised Second Amended Complaint lacks allegations of

racial or class-based animus, or racial or class-based discrimination.
Finally, as discussed in section I above, the fundamental flaw in plaintiffs §
1988 claim against the individual defendants was that the Amended Complaint did
not allege which constitutional rights were violated, when they were violated, how
they were violated, or who violated them. The proposed Revised Second Amended
Complaint provides that information for plaintiffs claims against the individual
UOPD officers by alleging the following violations of plaintiffs rights:

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e Article I, Section 10 of the United States Constitution by Officer Sitts for
stopping plaintiff and issuing traffic citations to plaintiff;
e Fifth Amendment right to silence by all UOPD officers for ignoring plaintiffs
request to remain silent;
e Sixth Amendment right to counsel by all VOPD officers for ignoring plaintiffs
request to have counsel present before answering questions;
Fourth Amendment right to be free from unreasonable searches and seizures
by all UOPD officers for searching plaintiffs car, seizing plaintiff when he
exited his car, arresting plaintiff, and in using excessive force during his
seizure and arrest;
e Fourteenth Amendment right to due process by all UOPD officers by “the
[de]liberate-fabrication of the evidence, ... the [is]suing of the false-civil &
criminal-charges [against] the Plaintiff,” and the “far]rest[] and [unJlawfulf)-
imprison[ment]” of plaintiff. Doc. 86 Ex 1 at 16 (brackets at the beginning of
words in original).
Doc. 36 Ex 1 at 16-17.
The proposed Revised Second Amended Complaint also references other
constitutional rights, including the Ninth Amendment, when discussing the VOPD
officers’ conduct in the “LEGAL-ARGUMENT” section and several constitutional and
statutory provisions that President Schill and Chief Carmichael allegedly violated in
the “CONCLUSION” section. However, the Court cannot determine whether plaintiff
seeks to allege § 1983 claims against the officers, President Schill, and Chief
Carmichael for these alleged violations.
Because the proposed amended complaint does not correct all the deficiencies
identified in this opinion, plaintiffs motions for leave to amend are granted in part
and denied in part.

Th ne T3979 BEITATISC VAT AARATIA MNOp

Plaintiff shall have leave to file a second amended complaint that amends his
§ 1985 and § 1986 claims against the individual defendants and asserts any
additional § 1983 claims that plaintiff seeks to assert against the individual
defendants. In amending his complaint, plaintiff should keep in mind the issues
discussed in this opinion. Plaintiff shall file a second amended complaint within 30
days from the date of this Order.
Plaintiff should note that, if he does not file a new second amended complaint,
then the case will proceed on his proposed Revised Second Amended Complaint (doc.
Ex 1), and plaintiff will be able only to pursue his § 1983 claims against the individual
UOPD officers for violating his rights under Article I, section 10 of the United States
Constitution and the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution.
CONCLUSION
Defendants’ motions to dismiss (docs. 18, 20) are GRANTED in part and
DENIED in part. Plaintiffs claims are dismissed, with the exception of plaintiffs
§ 1983 claim against the individual police officers Sitts, Geeting, and Brooks for
violating his Fourth Amendment rights. Plaintiffs fourth claim for a violation of
18 U.S.C. § 23833(a) and his § 1983 and § 1986 claims against University of Oregon
and the UOPD are dismissed without leave to amend, and University of Oregon and
the UOPD are dismissed from this action, All other claims are dismissed with leave
to amend.

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Plaintiffs metions for leave to amend (docs. 26, 29, 36) are GRANTED in part
and DENIED in part. Plaintiff shall have leave to amend his § 1983, § 1985, and
§ 1986 claims against the individual defendants and shall have 30 days from the date
of this Order to file a second amended complaint.
IT IS SO ORDERED.
Dated this & mM of January 2020,

Ann Aiken
United States District Judge

Deen 99 MDTRITNN ARID OPNYYD

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10391559. Public record. Not legal advice.