Hernandez v. Jefferson County Sheriff's Office

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EDWARD HERNANDEZ, Case No. 3:19-cv-1404-JR

Plaintiff, OPINION AND ORDER

v.

JEFFERSON COUNTY SHERIFF’S

OFFICE, et al.,

Defendants.

Michael H. Simon, District Judge.

United States Magistrate Judge Jolie A. Russo issued Findings and Recommendation in

this case on May 6, 2020. ECF 51. Judge Russo recommended that the motions to dismiss filed

by Defendants Robert Marrazzo (“Marrazzo”), Barry Davidson (“Davidson”), and the Oregon

State Police Department (“OSP”) be granted, and claims asserted against them dismissed, some

without leave to amend. Plaintiff objects to all the findings and recommendations and requests a

de novo review by this Court. After considering de novo the Findings and Recommendation, the

objections, the responses, and the underlying briefing filed before Judge Russo, for the reasons

discussed below, the Findings and Recommendation is adopted in part, and the motions to

dismiss are granted in part.

STANDARDS

A. Review of a Findings and Recommendation

Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.

§ 636(b)(1). If a party files objections to a magistrate judge’s findings and recommendations,

“the court shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).

For those portions of a magistrate judge’s findings and recommendations to which neither

party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474

U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to

require a district judge to review a magistrate’s report to which no objections are filed.”); United

States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court

must review de novo magistrate judge’s findings and recommendations if objection is made, “but

not otherwise”). Although in the absence of objections no review is required, the Act “does not

preclude further review by the district judge[] sua sponte . . . under a de novo or any other

standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ.

P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate

judge’s recommendations for “clear error on the face of the record.”

B. Rule 12(b)(5) Service of Process

Rule 12(b)(5) of the Federal Rules of Civil Procedure provides for a motion to dismiss

for “insufficient process.” The sufficiency of process is governed by Rule 4 of the Federal Rules

of Civil Procedure. Rule 4(m) requires that a defendant be served within 90 days or a court “must

dismiss the action without prejudice against that defendant or order that service be made within a

specified time.” Rule 4(e) explains how to serve an individual within the United States, and

includes that following state law within the jurisdiction where service is made or the action is

filed constitutes sufficient service.

Under Oregon law, service may be made by:

personal service of true copies of the summons and the complaint

upon defendant or an agent of defendant authorized to receive

process; substituted service by leaving true copies of the summons

and the complaint at a person’s dwelling house or usual place of

abode; office service by leaving true copies of the summons and

the complaint with a person who is apparently in charge of an

office; service by mail; or service by publication.

Or. R. Civ. P. 7D(1).

Substituted service is further defined as:

Substituted service may be made by delivering true copies of the

summons and the complaint at the dwelling house or usual place of

abode of the person to be served to any person 14 years of age or

older residing in the dwelling house or usual place of abode of the

person to be served. Where substituted service is used, the

plaintiff, as soon as reasonably possible, shall cause to be mailed

by first class mail true copies of the summons and the complaint to

the defendant at defendant’s dwelling house or usual place of

abode, together with a statement of the date, time, and place at

which substituted service was made. For the purpose of computing

any period of time prescribed or allowed by these rules or by

statute, substituted service shall be complete upon the mailing.

Or. R. Civ. P. 7D(2)(b).

Service by mail is further defined as:

When service by mail is required or allowed by this rule or by

statute, except as otherwise permitted, service by mail shall be

made by mailing true copies of the summons and the complaint to

the defendant by first class mail and by any of the following:

certified, registered, or express mail with return receipt requested.

For purposes of this paragraph, “first class mail” does not include

certified, registered, or express mail, return receipt requested, or

any other form of mail that may delay or hinder actual delivery of

mail to the addressee.

Or. R. Civ. P. 7D(2)(d)(i). Service by mail is considered complete “on the day the defendant, or

other person authorized by appointment or law, signs a receipt for the mailing, or 3 days after the

mailing if mailed to an address within the state, or 7 days after the mailing if mailed to an

address outside the state, whichever first occurs.” Id. 7D(2)(d)(ii).

When a defendant challenges service, the plaintiff bears the burden of establishing the

validity of service as governed by Rule 4 of the Federal Rules of Civil Procedure. See

Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). There are “two avenues for relief” under

Rule 4(m). Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). “The first is

mandatory: the district court must extend time for service upon a showing of good cause. The

second is discretionary: if good cause is not established, the district court may extend time for

service upon a showing of excusable neglect.” Id. (citations and footnotes omitted); see also

Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 2007) (“Rule 4(m), as amended in 1993,

requires a district court to grant an extension of time when the plaintiff shows good cause for the

delay. Additionally, the rule permits the district court to grant an extension even in the absence

of good cause.” (emphasis in original) (citation omitted)).

The Ninth Circuit has stated that excusable neglect may suffice to show good cause. See,

e.g., Lemoge, 587 F.3d at 1198 n.3. A plaintiff, however, also may “be required to show the

following [additional] factors to bring the excuse to the level of good cause: ‘(a) the party to be

served personally received actual notice of the lawsuit; (b) the defendant would suffer no

prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.’” Id.

(quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991)); see also In re Sheehan, 253

F.3d 507, 512 (9th Cir. 2001). Further, a defendant’s evasion of service may constitute good

cause. See Wei v. State of Hawaii, 763 F.2d 370, 371-72 (9th Cir. 1985) (per curiam). In

considering excusable neglect for discretionary extensions, a district court may consider factors

“like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and

eventual service.” Efaw, 473 F.3d at 1040.

“Rule 4 is a flexible rule that should be liberally construed so long as a party receives

sufficient notice of the complaint.” Whidbee v. Pierce County, 857 F.3d 1019, 1023 (9th

Cir. 2017) (quoting Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840

F.2d 685, 688 (9th Cir. 1988)). “However, ‘neither actual notice nor simply naming the

defendant in the complaint will provide personal jurisdiction without substantial compliance with

Rule 4.’” Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009)

(citing Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (citation and quotes omitted)).

C. Rule 12(b)(6) Failure to State a Claim

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for

failure to state a claim may be granted only when there is no cognizable legal theory to support

the claim or when the complaint lacks sufficient factual allegations to state a facially plausible

claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.

2010). In evaluating the sufficiency of a complaint’s factual allegations, the court must accept as

true all well-pleaded material facts alleged in the complaint and construe them in the light most

favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th

Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled

to a presumption of truth, allegations in a complaint “may not simply recite the elements of a

cause of action, but must contain sufficient allegations of underlying facts to give fair notice and

to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216

(9th Cir. 2011). The court must draw all reasonable inferences from the factual allegations in

favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir.

2008). The court need not, however, credit the plaintiff’s legal conclusions that are couched as

factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “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.” Iqbal, 556 U.S. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation

marks omitted).

A court must liberally construe the filings of a self-represented, or pro se, plaintiff and

afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th

Cir. 2010). “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) (quoting Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

curiam)). Under Federal Rule of Civil Procedure 8(a)(2), however, every complaint must contain

“a short and plain statement of the claim showing that the pleader is entitled to relief.” This

standard “does not require ‘detailed factual allegations,’” but does demand “more than an

unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that

offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will

not do.’” Id. (quoting Twombly, 550 U.S. at 555).

DISCUSSION

Defendants Marrazzo and Davidson move to dismiss claims against them under

Rule 12(b)(5) and, in the alternative, under Rule 12(b)(6) for failure to state a claim. Defendant

OSP moves to dismiss based on Eleventh Amendment sovereign immunity. OSP also moves to

dismiss Plaintiff’s claims under the Oregon Tort Claims Act (“OTCA”) for failure to provide the

requisite notice, under Rule 12(b)(6) for failure to state claim, and generally as improper under

Section 1983. Because the Court dismisses Plaintiff’s claims against OSP based on Eleventh

Amendment sovereign immunity, the Court does not reach OSP’s other arguments.

A. Motion to Dismiss for Insufficient Service of Process

Plaintiff had a third party serve Marrazzo and Davidson. The proof of service filed states

that both of these Defendants were served by a having copies of the summons and Complaint

sent through first class mail. ECF 17. The proof of service does not describe any other attempts

at service. Plaintiff asserts that the process server made numerous attempts to serve Davidson in

person and sent the summons and Complaint twice through certified mail with “no reply

forthcoming” before mailing the summons and Complaint through first class mail as a last resort.

The proof of service, however, does not describe any attempts at personal service or certified

mail in the “additional information regarding attempted service” section. Nor did Plaintiff file

any receipt for attempted service by certified mail (Plaintiff states they were “misplaced”) or a

supplemental declaration by the process server attesting to any attempts at service other than by

first class mail.

After learning in January 2020 that Marrazzo intended to move to dismiss for insufficient

service, Plaintiff purported to re-serve Marrazzo by sending a copy of the summons and

Complaint through first class mail to counsel for Marrazzo on January 27, 2020. After Davidson

filed his Motion to Dismiss, Plaintiff purported to re-serve Davidson on March 17, 2020, by

having Davidson served via certified mail, return receipt requested. Plaintiff submits a copy of

the postal receipt for sending the certified mail package. ECF 39-2 at 2. No signed return receipt

was submitted, so it is unknown whether Davidson refused to sign or whether he signed, and

Plaintiff did not submit that receipt. Plaintiff responded to the motions to dismiss by arguing that

service on both these Defendants constituted substantial compliance with Rule 4. He requested,

in the alternative, that if service is not deemed sufficient, the Court should not dismiss his case

against Marrazzo and Davidson but should allow Plaintiff to re-serve these Defendants.

Service under Oregon law requires more than only service by first class mail. It requires

service by first class and registered or certified mail. Thus, Plaintiff’s original sending of the

summons and Complaint via first class mail to Marrazzo and Davidson was not sufficient service

under Oregon law. Mailing the summons and Complaint to Marrazzo’s counsel also was not

sufficient service. Counsel was not Marrazzo’s agent for service of process and had not signed a

waiver of service of process. Plaintiff’s service on Marrazzo was not proper service and did not

substantially comply with Rule 4. See, e.g., Azzawi v. Brown, 2015 WL 6460363, at *3 (E.D.

Cal. Oct. 26, 2015) (noting that the doctrine of substantial compliance “exists to save instances

of ineffective service based on technical defects to avoid dismissals that would prejudice the

plaintiff” and that service by mail “is far from a technical defect” (emphasis in original));

Procopio v. Conrad Prebys Tr., 2015 WL 4662407 (S.D. Cal. Aug. 6, 2015) (noting that

substantial compliance is to address “minor defects in service and prevent dismissal,” not to

prevent the quashing of improper service).

Plaintiff is representing himself, and pro se litigants are given some consideration in

federal litigation in that their pleadings are liberally construed. Nonetheless, they are expected to

know and comply with the rules of civil procedure. See, e.g., Ghazali v. Moran, 46 F.3d 52, 54

(9th Cir. 1995) (“Although we construe pleadings liberally in their favor, pro se litigants are

bound by the rules of procedure.”). Plaintiff has not met his burden to show that he properly

served Marrazzo.

Regarding service on Davidson, Plaintiff served him a second time via certified mail,

return receipt requested. Thus, Plaintiff served Davidson both via first class mail and certified

mail, return receipt requested. That is what is required under Oregon law. Oregon law provides

that service is complete upon the signature for the return receipt, of which there is none in the

record, or three days after mailing, whichever is sooner. Or. R. Civ. P. 7D(2)(d)(ii). The mailing

via certified mail was on January 27, 2020, so service is complete three days later, on

January 30, 2020. This is after the 90-day deadline for service set in Rule 4(m).

The Court considers whether Plaintiff has shown excusable neglect for delaying service.

The Court considers factors like “a statute of limitations bar, prejudice to the defendant, actual

notice of a lawsuit, and eventual service.” Efaw, 473 F.3d at 1040. All of these factors support a

finding of excusable neglect. Plaintiff may face a statute of limitations bar, there is no prejudice

to Davidson or Marrazzo, both defendants received actual notice, and Plaintiff will be able to

properly serve them, and in the case of Davidson, has already properly served him. This does

not, however, rise to the level of good cause requiring the Court to provide additional time for

Plaintiff to serve Marrazzo and Davidson. Courts, however, generally exercise their discretion by

allowing additional time and quashing service instead of dismissing claims in cases under these

circumstances. See Bratset v. Davis Joint Unified Sch. Dist., 2016 WL 7212779, at *4 (E.D. Cal.

Dec. 12, 2016) (“‘Generally service will be quashed in those cases in which there is a reasonable

prospect that the plaintiff will be able to serve the defendant properly.’” (quoting Crayton v.

Rochester Medical Corp., 2008 WL 3367604, at *5 (E.D. Cal. Aug. 8, 2008))); see also Evans v.

Nationstar Mortg., LLC, 2015 WL 6756255, at *4 (E.D. Cal. Nov. 5, 2015); Procopio v. Conrad

Prebys Tr., 2015 WL 4662407, at *5-6 (S.D. Cal. Aug. 6, 2015).

The Court will not dismiss Plaintiff’s complaint for insufficient service. The Court

instead extends the time allowed for service under Rule 4(m) of the Federal Rules of Civil

Procedure. The Court finds that the Plaintiff’s service through the combined first class mail and

certified mail to Davidson is sufficient service. The Court therefore extends the time for service

on Davidson through January 20, 2020. Davidson’s motion to dismiss based on insufficiency of

service is denied and service on Davidson is deemed timely and sufficient.

Plaintiff’s attempts to serve Marrazzo are quashed. Plaintiff has 28 days from the date of

this Opinion and Order to serve Marrazzo in compliance with Rule 4 of the Federal Rules of

Civil Procedure.

B. Defendant Marrazzo’s Motion to Dismiss for Failure to State a Claim

1. Abuse of Process

Under Oregon law “‘[a]buse of process’ is the perversion of a process that is regular on

its face to a purpose for which the process is not intended.” Pfaendler v. Bruce, 195 Or.

App. 561, 571 (2004). It has been described as “the use of the process as a club by which to

extort something unrelated to the process from the other party.” Id. (quoting Clausen v.

Carstens, 83 Or. App. 112, 118 (1986)). “[T]o plead a claim for abuse of process, a plaintiff

must allege some ulterior purpose, unrelated to the process, and a willful act in the use of the

process that is not proper in the regular conduct of the proceeding.” Id. Plaintiff alleges that

Marrazzo made a false statement to law enforcement officers that led enforcement officers to

conclude that Plaintiff was not entitled to defend a portion of his property and ultimately that led

to Plaintiff’s wrongful arrest. These allegations, however, do not include the allegedly unlawful

purpose for which Marrazzo allegedly acted. In other words, why did Marrazzo make that

allegedly false statement? For example, what was the “something unrelated to the process” that

Marrazzo was trying to extort from Plaintiff that Marrazzo was allegedly abusing the process in

order to obtain?

Additionally, the “process” alleged by Plaintiff is unclear. It appears that Plaintiff

alleging that Marrazzo filed a false police report (or verbally provided a false police report)

against Plaintiff that ultimately led to Plaintiff’s arrest. Most courts find that filing a false police

report is not sufficient “process” to constitute abuse of process. See, e.g., Taylor v. Clark Cty.

Sch. Dist., 2019 WL 2453648, at *3 (D. Nev. June 11, 2019) (Nevada law); Martel v. United

States, , 2012 WL 1555060, at *2 (E.D. Cal. Apr. 27, 2012) (California law); Hutchens v.

Hutchens, 2007 WL 2320074, at *6 (D. Ariz. Aug. 10, 2007) (Arizona law). Oregon law

governing abuse of process is not substantively different from the law in these jurisdictions.

Moreover, although Plaintiff does not allege a fraud claim against Marrazzo, his abuse of

process claim relies on an alleged misrepresentation. Rule 9(b) applies to all allegations, or

averments, of fraud in all civil cases in federal court, even when fraud is not an essential element

of the claim. As explained by the Ninth Circuit:

In cases where fraud is not a necessary element of a claim, a

plaintiff may choose nonetheless to allege in the complaint that the

defendant has engaged in fraudulent conduct. In some cases, the

plaintiff may allege a unified course of fraudulent conduct and rely

entirely on that course of conduct as the basis of a claim. In that

event, the claim is said to be “grounded in fraud” or to “sound in

fraud,” and the pleading of that claim as a whole must satisfy the

particularity requirement of Rule 9(b). . . .

In other cases, however, a plaintiff may choose not to allege a

unified course of fraudulent conduct in support of a claim, but

rather to allege some fraudulent and some non-fraudulent conduct.

In such cases, only the allegations of fraud are subject to

Rule 9(b)’s heightened pleading requirements. The text of

Rule 9(b) requires only that in “all averments of fraud . . ., the

circumstances constituting fraud . . . shall be stated with

particularity.” Fed. R. Civ. P. 9(b) (emphasis added).1 The rule

does not require that allegations supporting a claim be stated with

particularity when those allegations describe non-fraudulent

conduct.

In such cases, application of Rule 9(b)’s heightened pleading

requirements only to “averments” of fraud supporting a claim

rather than to the claim as a whole not only comports with the text

of the rule; it also comports with the rule’s purpose of protecting a

defendant from reputational harm. As we stated in In re Stac,

“Rule 9(b) serves to . . . protect professionals from the harm that

comes from being subject to fraud charges.” 89 F.3d at 1405.

Fraud allegations may damage a defendant’s reputation regardless

of the cause of action in which they appear, and they are therefore

properly subject to Rule 9(b) in every case. To require that non-

fraud allegations be stated with particularity merely because they

appear in a complaint alongside fraud averments, however, serves

no similar reputation-preserving function, and would impose a

burden on plaintiffs not contemplated by the notice pleading

requirements of Rule 8(a).

* * *

Thus, if particular averments of fraud are insufficiently pled under

Rule 9(b), a district court should “disregard” those averments, or

“strip” them from the claim. The court should then examine the

allegations that remain to determine whether they state a claim.

Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-05 (9th Cir. 2003) (emphasis in original)

(first alteration added, remaining alterations in original) (citations omitted) (footnote added).

1 An “averment” is a positive declaration or affirmation of fact; an assertion or allegation

in a pleading is an averment. Bryan A. Garner, ed., BLACK’S LAW DICTIONARY 156 (9th

ed. 2009). In 2007, the text of Rule 9 was amended to make it “more easily understood. . . .

These changes are intended to be stylistic only.” Fed. R. Civ. P. 9 advisory committee’s note

2007 amendment. Thus, the change from “averments of fraud” to “alleging fraud” does not affect

this analysis.

The other elements of Plaintiff’s abuse of process claim do not need to be alleged with

particularity, but the alleged misrepresentation by Marrazzo must be alleged in compliance with

Rule 9(b). Plaintiff’s allegations supporting his abuse of process claim, with or without the

alleged misrepresentation, do not state a claim. Plaintiff’s allegations relating to Marrazzo’s

misrepresentation, however, also do not comply with Rule 9(b). This claim is dismissed with

leave to amend if Plaintiff believes he can cure the identified deficiencies. In any amended

complaint, however, Plaintiff’s allegations relating to Marrazzo’s purported misrepresentation

must comply with Rule 9(b).

2. Intentional Infliction of Emotional Distress

The Court has reviewed this issue de novo. The Court adopts this portion of the Findings

and Recommendation.

3. Negligent Infliction of Emotional Distress

The Oregon Supreme Court has discussed several circumstances under which a plaintiff

may recover damages for emotional distress. See Philbert v. Kluser, 385 P.3d 1038 (2016).

These include: (1) when there is physical injury; (2) when the tortfeasor acted intentionally;

(3) “when a defendant negligently causes foreseeable, serious emotional distress and also

infringes some other legally protected interest”; and (4) when a bystander perceives serious

bodily injury to a close family member. Id. at 1041, 1046. Plaintiff appears to be alleging a claim

under the third type of negligent infliction of emotional distress. A plaintiff alleging this type of

claim “must identify the invasion of an interest that is or should be legally protected, and must

also allege the facts otherwise necessary to support a negligence claim.” Id. at 1042 n.3. Plaintiff

fails to identify the legally protected interest he alleges was negligently infringed by Marrazzo,

and thus this claim is dismissed with leave to amend.

C. Defendant Davidson’s Motion to Dismiss for Failure to State a Claim

1. Abuse of Process

Plaintiff’s Complaint, liberally construed, includes several allegations relating to his

claim of abuse of process against Davidson. Plaintiff alleges that Davidson was Plaintiff’s

landlord and Davidson stated that he had a friend in the Sheriff’s office who would help

Davidson upon request. Davidson filed an eviction action against Plaintiff. Plaintiff vacated the

property and moved to a new residence. Davidson came to Plaintiff’s new residence and

demanded money purportedly for back rent from when Plaintiff was a tenant of Davidson’s. The

next day, Plaintiff filed a court action against Davidson alleging tort claims. Shortly thereafter,

Sheriff’s patrols regularly began driving by Plaintiff’s new residence. Davidson and Plaintiff

settled Plaintiff’s court case. The Sheriff’s patrols, however, continued driving by Plaintiff’s new

residence. Plaintiff’s neighbor allegedly commented that the Sheriff patrols were unusual and

concerning. Plaintiff called the Sheriff’s office to report vandalism when his gate was damaged.

The deputy, Defendant Larson, made a comment about “squatters.”

Plaintiff’s allegations of abuse of process against Davidson suffer from the same

deficiencies as those against Marrazzo. Plaintiff does not allege Davidson’s improper purpose

(e.g., to get Plaintiff to pay back rent, to drop his lawsuit, or for some other purpose in light of

the alleged fact that the allegedly improper patrols continued after Davidson and Plaintiff settled

his lawsuit). Plaintiff also does not allege any “process” that is sufficient to state a claim for

abuse of process because asking a police officer to repeatedly drive by Plaintiff’s house is not

“process.” See, e.g., Restatement (Third) of Torts: Liab. for Econ. Harm § 26 (2020) (“The word

‘process’ in the title of this Section does not refer to the legal process generally. It refers to

process in the more specific sense of the word familiar to lawyers: the instruments by which

courts assert their jurisdiction and command others to appear, act, or desist. In short, ‘process’

generally means orders that are issued by courts at the behest of one of the parties, or that are

otherwise backed by judicial authority.”); Taylor, 2019 WL 2453648, at *3 (“The tort of abuse of

process protects the integrity of the judicial system by prohibiting malicious use of the courts by

a party with an ulterior motive to resolving a genuine legal dispute.”); Martel, 2012

WL 1555060, at *2 (noting that an abuse of process claim must involve “the use of the court

process, i.e. action taken pursuant to judicial authority”); Hutchens, 2007 WL 2320074, at *6

(noting that process means “encompassing the entire range of court procedures incident to the

litigation process”). This claim is dismissed with leave to amend if Plaintiff believes he can cure

the deficiencies identified by the Court.

2. Intentional Infliction of Emotional Distress

The Court has considered this claim de novo. The Court adopts this portion of the

Findings and Recommendation.

3. Negligent Infliction of Emotional Distress

For the same reasons the Court dismissed this claim against Marrazzo, the Court

dismisses this claim against Davidson. Plaintiff has leave to amend this claim if Plaintiff believes

he can cure the deficiencies identified by the Court.

4. Private Nuisance

“A private nuisance is an unreasonable non-trespassory interference with another’s

private use and enjoyment of land. The right to recover is in the person whose land is harmed.”

Drayton v. City of Lincoln City, 244 Or. App. 144, 148 (2011) (quoting Mark v. Dept. of Fish

and Wildlife, 158 Or. App. 355, 360 (1999)). To constitute a nuisance, the alleged conduct or

action must “substantially and unreasonably interfere[] with the use and enjoyment of [a]

plaintiff[’s] property.” Penland v. Redwood Sanitary Sewer Serv. Dist., 156 Or. App. 311, 315

(1998). In making this determination, a court should “assess five factors: (1) the location of the

claimed nuisance; (2) the character of the neighborhood; (3) the nature of the thing complained

of; (4) the frequency of the intrusion; and (5) the effect upon the plaintiff’s enjoyment of life,

health and property.” Id.

At this stage of the litigation, Plaintiff’s allegations are sufficient to link the initial

increased patrols by the Sheriff’s office to Davidson. Plaintiff’s allegations are not, however,

sufficient to link any continued patrols to Davidson after Davidson and Plaintiff settled their

dispute. Indeed, Plaintiff’s allegations show that it was Marrazzo, Plaintiff’s landlord after

Davidson, who allegedly falsely reported that Plaintiff had not paid rent and was a “squatter.”

Plaintiff alleges this contributed to Larson’s ongoing “prejudice and animosity” toward Plaintiff

and ongoing “relentless surveillance.” See Compl. ¶¶ 16-18. These allegations relate to Marrazzo

and not Davidson.

Additionally, Plaintiff’s allegations fail to show that the Sheriff’s patrols created

interference that is both substantial and unreasonable. See Jewett v. Deerhorn Enters., Inc., 281

Or. 469, 473 (1978) (“A nuisance, claimed to be an interference with the use and enjoyment of

land, is not actionable unless that interference is both substantial and unreasonable.”). Plaintiff

alleges that patrols would drive by, would sometimes make a u-turn and drive back before

exiting, and sometimes would park in the RV lot for a little bit before exiting. Plaintiff alleges

that he moved from the RV lot after five months and the patrols continued past his second new

residence. He alleges the patrols passed his property or parked nearby.

In Plaintiff’s response to Davidson motion to dismiss, Plaintiff provides more details.

Plaintiff discusses how the deputies would sit and “glare” at Plaintiff, how they would patrol by

his residence nearly every day and sometimes more than once per day, and how the conduct

greatly interfered with his ability to use and enjoy his property. Much of this conduct appears

related to the later time period. Additionally, these details are not in Plaintiff’s Complaint. His

Complaint contains only general allegations that Larson or other deputies would “regularly”

drive by, and sometimes park, near Plaintiff’s residence. Such allegations do not show a level of

harassment that creates a substantial loss of use and enjoyment and of property. Moreover, the

Court could not find, and Plaintiff did not cite, any authority for the proposition that even if

Plaintiff were to allege more harassing conduct, it would suffice for a private nuisance claim,

which is traditionally focused on use of property, not civil harassment against a person. See, e.g.,

Crossen v. Diehl, 2019 WL 1933644, at *5 (Conn. Super. Ct. Apr. 8, 2019) (“The plaintiffs have

not cited, and the court has not found, any case holding that harassing conduct itself can create a

condition relating to the use of land sufficient to create an actionable, private nuisance.”). This

claim is dismissed with leave to amend, if Plaintiff believes he can cure the identified

deficiencies.

5. Invasion of Privacy

Invasion of privacy based on “intrusion upon seclusion,” alleged by Plaintiff, requires a

plaintiff to show: “(1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s

solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a

reasonable person.” Reed v. Toyota Motor Credit Corp., 301 Or. App. 825, 831 (2020). Plaintiff

alleges that Davidson committed this tort by causing Larson and other Sheriff’s deputies to

harass Plaintiff at his two residences. As discussed above, Plaintiff’s current allegations do not

show that Davidson was connected to the Sheriff’s department’s activities beyond the initial few

months. Additionally, Plaintiff’s current allegations are that Sheriff’s vehicles drove by an

unknown number of times, sometimes made a u-turn, and sometimes parked nearby. This does

not rise to a level that would be “highly offensive to a reasonable person.” Accordingly, this

claim is dismissed with leave to amend.

D. Claims Against OSP

OSP moves to dismiss the claims against it under the Eleventh Amendment. The

Supreme Court has interpreted the Eleventh Amendment generally to prohibit a citizen from

suing a state or state agency in federal court. See College Savings Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd., 527 U.S. 666, 669-70 (1999). Supreme Court case law

establishes that a state is immune from suit in federal court unless Congress has abrogated the

state’s immunity by appropriate federal legislation or the state itself has waived it. Va. Office for

Prot. & Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011). OSP correctly asserts that it is an

“arm” or agency of the State of Oregon. See, e.g., Wright v. Oregon, 2002 WL 31474178, at *5-6

(D. Or. Feb. 20, 2002) (finding claims against the Oregon state police barred by the Eleventh

Amendment); accord Worzala v. Bonner Cty., 2007 WL 328829, at *1 (D. Idaho Jan. 31, 2007)

(noting that “the Idaho State Police is an arm of the State of Idaho”); Shervin v. California State

Police Dep’t, 5 F.3d 539 (9th Cir. 1993) (noting that “the California State Police is an arm of the

state”).

The State of Oregon has not waived its sovereign immunity from suit in federal court.

The OTCA provides for a limited waiver of sovereign immunity. It is not, however, a waiver of

Eleventh Amendment immunity from suit in federal court. See Millard v. Or. Dep’t of

Corrections, 2014 WL 2506470, at *14 (D. Or. June 3, 2014); see also Estate of Pond v.

Oregon, 322 F. Supp. 2d 1161, 1165 (D. Or. 2004) (“The [OTCA] is a waiver of sovereign

immunity but does not waive Eleventh Amendment immunity. Thus, suits by private parties

against the state must be brought in state court.”). Suits against the state of Oregon under the

OTCA must be brought in state court.

Congress has not abrogated Eleventh Amendment state sovereign immunity for

Section 1983 claims. See Braunstein v. Ariz. Dept. of Transp., 683 F.3d 1177, 1188 (9th

Cir. 2012). Thus, Plaintiff may not bring an action in federal court asserting a violation of

Section 1983 by the State of Oregon or an arm of the State, such as OSP.

The Supreme Court has held that although a plaintiff may not sue a state official in his or

her official capacity for money damages in a Section 1983 action,2 a plaintiff may sue a state

official for money damages in his or her personal capacity. Hafer v. Melo, 502 U.S. 21, 25

(1991). This is because “[p]ersonal-capacity suits . . . seek to impose individual liability upon a

government officer for actions taken under color of state law.” Id. Accordingly, “to establish

personal liability in a § 1983 action, it is enough to show that the official, acting under color of

state law, caused the deprivation of a federal right.” Id. (quoting Kentucky v. Graham, 473

U.S. 159, 166 (1985)). Plaintiff, however, has sued OSP, not an OSP official in his or her

personal capacity. Accordingly, Plaintiff’s claims against OSP are dismissed without leave to

amend.

CONCLUSION

The Findings and Recommendation (ECF 51) is ADOPTED IN PART. Defendant Robert

Marrazzo’s Motion to Dismiss (ECF 14) and Barry Davidson’s Motion to Dismiss (ECF 29) are

GRANTED. Plaintiff’s claims against these Defendants are dismissed with leave to amend if

Plaintiff believes in good faith that he can cure the deficiencies identified by the Court in this

2 To establish Section 1983 liability, a plaintiff must prove “(1) deprivation of a right

secured by the Constitution and laws of the United States, and (2) that the deprivation was

committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d

1128, 1138 (9th Cir. 2012) (citation omitted). The Supreme Court has held that state officials

acting within their official capacity are not “persons” within the meaning of § 1983. Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 64, 71 (1989). Instead, the suit “is not a suit against the

official but rather is a suit against the official’s office” and as such “is no different from a suit

against the State itself.” Id. This definition of “person” must be applied to all Section 1983

claims, whether brought in state or federal court. Howlett By & Through Howlett v. Rose, 496

U.S. 356, 375-76 (1990). Thus, a state official cannot be sued under § 1983 in his or her official

capacity for monetary relief.

Opinion and Order. Defendant Oregon State Police’s Motion to Dismiss (ECF 25) is

GRANTED. Plaintiff’s claims against this Defendant are dismissed without leave to amend. Any

amended complaint must be filed within 14 days from the date of this Opinion and Order.

Defendant Marrazzo must be served with process within 14 days from the filing of any amended

complaint and, if no amended complaint is filed, within 28 days of this Opinion and Order.3

IT IS SO ORDERED.

DATED this 23rd day of June, 2020.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

3 In other words, if Plaintiff files an amended complaint, he can wait to serve Marrazzo

until after the amended complaint is filed, and Plaintiff will have 14 days to serve Marrazzo with

the summons and amended complaint. If Plaintiff chooses not to file an amended complaint, he

will have 14 days after that deadline passes to serve Marrazzo with the summons and original

complaint.