The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
NICHOLAS-JON PARTIN dba ALANNA Civ No. 6:19-cv-1948-AA
NICOLE PARTIN, OPINION AND ORDER
Plaintiff,
vs.
AARON GEVATOSKI; SCOTT JACKSON;
JIM YON; CONNOR MCCAHILL; ANDREW
JOHNSON; DAKOTAH KEYS; JASON VAN
ECK; ERIC KONZELMAN; BENTON
COUNTY SHERIFF’S OFFICE; BENTON
COUNTY CIRCUIT COURT; LINN COUNTY
SHERIFF’S OFFICE; LINN COUNTY
CIRCUIT COURT; OREGON STATE POLICE
ALBANY STATION; OREGON STATE
POLICE OSU CAMPUS DIVISION; SWEET
HOME POLICE DEPARTMENT; OREGON
DEPARTMENT OF JUSTICE; STATE OF
OREGON,
Defendants.
AIKEN, District Judge:
Plaintiff Nicholas Jon Partin dba Alanna Nicole Partin1 seeks leave to proceed
in forma pauperis (“IFP”) in this action. In addition to the Complaint (doc. 1), plaintiff
has filed a “Motion for Injunction and Remandation [sic] to Federal Court for Motion
for Answer of Federal Question and Rights Violations then Anything Remaining
Ap[p]licable Return to Proper Venue as Determined by Magistrate” (doc. 2), which
this Court interprets as a Motion for Preliminary Injunction. For the reasons set
forth below, the Complaint (doc. 1) is DISMISSED with leave to amend as to all
claims brought pursuant to 42 U.S.C. § 1983. As to plaintiff’s remaining claims, the
Complaint (doc. 1) is DISMISSED with prejudice. Likewise, plaintiff’s Motion for
Injunction (doc. 2) is DENIED.
LEGAL STANDARD
Generally, all parties instituting any civil action in United States District
Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP
statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for
meaningful access to federal courts despite their inability to pay the costs and fees
associated with that access. To authorize a litigant to proceed IFP, a court must make
two determinations. First, a court must determine whether the litigant is unable to
pay the costs of commencing the action. 28 U.S.C. § 1915(a)(1). Second, it must assess
whether the action is frivolous, malicious, fails to state a claim upon which relief may
1 Plaintiff’s Complaint (doc. 1) lists the plaintiff as “ALANNA NICOLE
PARTIN MN ANC 1058427200026” but is signed by Nicholas-Jon Partin, the “AUTH
REP / NAME HOLDER TO ALANNA.” However, based on documentation (doc. 1-2)
attached to the Complaint, this Court infers that Alanna Nicole Partin is an assumed
business name and alias of Nicholas-Jon Partin.
be granted, or seeks monetary relief from a defendant who is immune to such relief.
28 U.S.C. § 1915(e)(2)(B).
In regard to the second of these determinations, district courts have the power
under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the
complaint on the defendants and must dismiss a complaint if it fails to state a claim.
Courts apply the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing
a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter,
668 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss under the federal
pleading standards, the complaint must include a short and plain statement of the
claim and “contain sufficient factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. The plausibility
standard . . . asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. The court is not required to accept legal conclusions, unsupported
by alleged facts, as true. Id.
Pro se pleadings are held to less stringent standards than pleadings by
attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). That is, the court should
construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefit of
any doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir.
1988). Additionally, a pro se litigant is entitled to notice of the deficiencies in the
complaint and the opportunity to amend, unless the complaint’s deficiencies cannot
be cured by amendment. Id.
DISCUSSION
The Complaint in this case offers minimal facts and is largely unintelligible.
From what the Court can best gather, plaintiff is facing multiple state-level criminal
charges in Benton County Circuit Court and in Linn County Circuit Court,
respectively. Doc. 1-2 at 2-5; 7-15. Although plaintiff appears to have filed this
complaint on behalf of a Minnesota business by the name of Alanna Nicole Partin
(“ANP”), documents attached to the Complaint (doc. 1-2 at 6) reveal that ANP is an
assumed business name, not a separate legal entity. This fact alone undercuts a large
portion of plaintiff’s claims, which appear to allege that state and local officials
wrongfully pursued and filed charges against plaintiff’s business, ANP, which
plaintiff argues is “NOT A LIVING BEING.”2 Doc. 2 at 3:3.
Drawing upon this underlying claim of mistaken identity and a related arrest
stemming from a November 18, 2018 traffic stop, plaintiff alludes to various criminal
and constitutional violations committed by a wide assortment of law enforcement
officers and government entities. Doc. 2 at 1-3. Plaintiff seeks money damages as
well as injunctive relief to enjoin the defendants from pursuing additional criminal
charges against plaintiff. Doc. 1 at 5.
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2 Plaintiff goes on to argue that he is wrongfully being held “in peonage” for the
debts of ANP. Doc. 2 at 5:14.
I. Potential Immunity of Defendants
As a preliminary matter, the Court notes that longstanding immunity
doctrines may limit plaintiff’s ability to seek damages against some, if not all, of the
named defendants. Plaintiff has identified, for example, Deputy Aaron Gevatoski,
Sheriff Scott Jackson, Oregon State Trooper Dakotah Keys, Linn County District
Attorney Connor McCahill, the Linn and Benton Circuit Courts, the Oregon State
Police, the Oregon Department of Justice, and the State of Oregon. Setting aside the
question of whether plaintiff intended to pursue liability against any of these listed
defendants in their individual capacity,3 many if not all of the government entities
listed are likely immune from civil liability pursuant to the doctrine of sovereign
immunity. See Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011)
(explaining that states are immune from suit “except as altered by the plan of the
Convention or certain constitutional amendments”) (quoting Alden v. Maine, 527 U.S.
706, 713 (1999)); see generally U.S. Const. amend. XI. Absent a waiver or specific
legislation abrogating such immunity, federal courts may not entertain a private
citizen’s suit against a state. Id. at 254. Plaintiff has not presented evidence of a
waiver by the state, nor does plaintiff seek relief under any statute which provides
for an abrogation of state sovereignty.
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3 If plaintiff in fact intended to pursue damages against any of the listed
defendants in their individual capacities, the doctrine of qualified immunity presents
additional concerns.
II. Abstention Concerns
Plaintiff’s complaint appears to stem from multiple ongoing criminal charges filed
against plaintiff in both Benton County and Linn County, Oregon. Under the
Supreme Court holding in Younger, however, a federal court may not intervene by
injunction or declaratory judgment in a pending state court criminal proceeding
except under extraordinary circumstances where the threat of irreparable injury is
“both great and immediate.” Younger v. Harris, 401 U.S. 37, 46 (1971). Similarly,
the Anti-Injunction Act states that “[a] court of the United States may not grant an
injunction to stay proceedings in a State court except as expressly authorized by Act
of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its
judgments.” 28 U.S.C. § 2283. Pursuant to these doctrines of federal abstention, this
Court is not convinced, based on the allegations in the complaint, that interference
with plaintiff’s ongoing state court proceedings would be warranted or appropriate.
Plaintiff should be mindful of these restrictions should he seek to amend his
complaint.
III. Failure to State a Claim
As explained above, the federal IFP statute directs a court to assess, in part,
whether an action fails to state a claim upon which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B). Plaintiff seeks relief under numerous federal statutes, and the Court
will assess each of these claims in turn.
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A. Claims Brought Under 18 U.S.C. § 227, 18 U.S.C. § 241, 18 U.S.C. § 242, 18
U.S.C. § 1581, and 18 U.S.C. § 1661
To start, plaintiff seeks relief under five criminal statutes, including 18 U.S.C.
§ 227 (Wrongfully influencing a private entity’s employment decisions by a Member
of Congress or an officer or employee of the legislative or executive branch), 18 U.S.C.
§ 241 (Conspiracy against rights), 18 U.S.C. § 242 (Deprivation of rights under color
of law), 18 U.S.C. § 1581 (Peonage; obstructing enforcement), and 18 U.S.C. § 1661
(Robbery ashore). Federal criminal statutes, however, do not provide a basis for a
private cause of action and must be prosecuted by the Attorney General. Frost v.
Robertson, 2009 WL 735690, at *16 (D. Idaho Mar. 19, 2009). Plaintiff has failed to
cite, and the Court is unable to locate, any authority to support a civil cause of action
for violations of these provisions. Therefore, these claims are dismissed with
prejudice for failure to state a claim upon which relief may be granted.
B. Claims Brought under 42 U.S.C. § 12203
Plaintiff also seeks relief under 42 U.S.C. § 12203 (Prohibition against
retaliation and coercion), a miscellaneous provision of 42 U.S.C. §§ 12101 et. seq., also
known as the Americans with Disabilities Act of 1990 (“ADA”). Section 12203 is clear,
however, in that it applies to retaliatory actions taken as a result of an individual’s
opposition to any of the acts or practices “made unlawful by this Act.” 42 U.S.C. §
12203(a). Plaintiff has failed to identity, and the Court is unable to locate, any claim
made under the ADA which might give rise to a retaliation claim under § 12203.
Therefore, this claim is also dismissed with prejudice for failure to state a claim upon
which relief may be granted.
C. Claims Brought Under 42 U.S.C. § 1983
Last, plaintiff seeks relief under 42 U.S.C. § 1983 (Civil action for deprivation
of rights). 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 § 1983, a plaintiff must
allege both (1) the deprivation of a right secured by the federal Constitution or
statutory law, and (2) 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). Plaintiff
refers to various violations of the U.S. Constitution which, although not explicitly
stated, this Court presumes to have been made under § 1983. I will assess each of
the alleged Constitutional violations in turn to determine whether plaintiff has stated
a plausible § 1983 claim for relief.
1. Second Amendment Claim
The Second Amendment protects the individual right to keep and bear arms
for the purpose of self-defense. McDonald v. City of Chicago, 561 U.S. 742, 749-50
(2010). Importantly, this right is limited: for example, states have long forbidden the
possession of firearms by felons and the mentally ill. District of Columbia v. Heller,
554 U.S. 570, 626.
Plaintiff claims that two firearms were seized from his vehicle during a traffic
stop by Deputy Aaron Gevatoski. Doc. 2 at 2:22. The mere occurrence of a firearm
seizure during a traffic stop, however, is not enough to establish a Second
Amendment violation. Police seize and confiscate firearms routinely, and this Court
will not presume that each and every one of those seizures is an automatic Second
Amendment violation without specific facts indicating such. Plaintiff has not
provided sufficient factual support to state a claim under the Second Amendment
that is plausible on its face given the numerous limitations on an individual’s right
to bear firearms. However, cognizant of the lenity allowed to pro se parties, the Court
dismisses plaintiff’s Second Amendment claim asserted under § 1983 with leave to
amend the claim.
2. Fourth Amendment Claims
The Fourth Amendment protects individuals against “unreasonable searches
and seizures” by the government. Terry v. Ohio, 392 U.S. 1, 8-9 (1968). Due to the
disjointed nature of plaintiff’s filings, it is hard to tell exactly what actions may have
constituted a Fourth Amendment violation in this case. As plaintiff is pro se,
however, the Court has attempted to discern the various Fourth Amendment claims
alleged given the minimal facts provided.
First, plaintiff appears to argue that his temporary detention by Deputy
Gevatoski constituted an unreasonable seizure violative of the Fourth Amendment.
The temporary detention of a motorist constitutes a “seizure” within the meaning of
the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10 (1996). The
decision to temporarily detain a motorist is “reasonable” where law enforcement has
probable cause to believe that a traffic violation has occurred. Id. at 810. If no
probable cause is found for the initial stop, the temporary seizure of a motorist may
still be found reasonable upon a balancing all relevant factors. Id. at 817. Plaintiff
alleges that Deputy Gevatoski unlawfully seized his vehicle on November 18, 2018,
“using the guise of a fallen license plate.” Doc. 2 at 1:18. Even construed liberally,
however, this fact alone is not enough to establish an unreasonable seizure which
violates the Fourth Amendment. On the contrary, this fact, if taken as true,
establishes that Deputy Gevatoski had the requisite probable cause needed to
temporarily detain plaintiff. Again, there are simply not enough facts to indicate
whether this temporary detainment was reasonable in light of the circumstances.
Second, plaintiff appears to allege that the supposed warrantless search of his
vehicle constituted an unreasonable search in violation of the Fourth Amendment.
The warrantless search of a vehicle by law enforcement is reasonable, though, where
the officer has reason to believe that he is dealing with an armed and dangerous
individual, regardless of whether he has probable cause to arrest the individual for
a crime. Terry, 293 U.S. at 27. An officer need not be certain that the individual is
armed; the question is “whether a reasonably prudent [person] in the circumstances
would be warranted in the belief that his safety or that of others was in danger.” Id.
Plaintiff claims that Deputy Gevatoski performed a warrantless and
unauthorized search of the vehicle after plaintiff refused to provide identification
upon request, which plaintiff argues “isn’t a crime.” Doc. 2 at 2:7. Plaintiff also
indicates that Deputy Gevatoski claimed to have seen a weapon, although plaintiff
refutes this fact. Doc. 2 at 2:9. With the minimal facts provided, the Court finds that
plaintiff has failed to present a plausible claim of an unlawful search violative of the
Fourth Amendment.
Third, plaintiff appears to allege excessive force by Deputy Gevatoski. A police
officer’s use of force in any seizure of a person is analyzed under the Fourth
Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386,
388 (1989). “Because the test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application, however, its proper
application requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id. (internal citations
omitted). Plaintiff alleges that Deputy Gevatoski “committed armed assault upon the
traveler Alanna-nicole : Partin via Taser.” Doc. 2 at 2:1. With this allegation and
nothing more, there are simply not enough facts present to establish a plausible
excessive force claim.
In sum the Court cannot determine whether defendant has stated a plausible
claim for a violation of the Fourth Amendment, Therefore, the Court dismisses
plaintiff’s Fourth Amendment claims asserted under § 1983 with leave to amend.
3. Sixth Amendment Claim
The Sixth Amendment guarantees the right to a speedy trial and to an
impartial jury. U.S. Const. amend. VI. Determining whether a delay violates the
Sixth Amendment involves “a balancing test, in which the conduct of both the
prosecution and the defendant are weighed.” Barker v. Wingo, 407 U.S. 514, 530
(1972). Here, however, plaintiff has not provided any specific facts which the Court
might use to assess whether a delay has plausibly occurred which would violate the
Sixth Amendment. Plaintiff merely states that the courts “have failed to follow
speedy trial rules.” Doc. 2 at 6:21-22. Plaintiff also references vague allegations of
tardiness and unexplained absences by various attorneys, none of whom are
identified. Doc. 2 at 6:23-25. These facts are insufficient to establish a Sixth
Amendment claim. Again, mindful of the lenity afforded to pro se parties, the Court
dismisses plaintiff’s Sixth Amendment claim asserted under § 1983 with leave to
amend.
4. Eighth Amendment Claim
The Eighth Amendment protects individuals against excessive bail, excessive
fines, or the infliction of cruel and unusual punishments. U.S. Const. amend. VIII.
Plaintiff’s filings, however, are devoid of facts or details to support an Eighth
Amendment claim. Accordingly, the Court dismisses plaintiff’s Eighth Amendment
claim asserted under § 1983 with leave to amend.
IV. Federal Rule of Civil Procedure 8
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short
and plain statement of the claim showing that the pleader is entitled to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The complaint as it stands now does
not contain a short and plain statement of the claims asserted; in fact, the only way
the Court is able to make sense of the complaint is through the details provided in
the Motion for Injunctive Relief. If plaintiff chooses to resubmit an amended
complaint, plaintiff is advised that the complaint itself must comply with Rule 8.
V. Plaintiff’s Motion for Injunctive Relief
The legal standard for preliminary injunctive relief requires a litigant to
demonstrate that she is likely to succeed on the merits, that she is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities tips
in her favor, and that an injunction is in the public interest. Stormans, Inc. v. Selecky,
571 F.3d 960, 978 (9th Cir. 2009) (internal citations omitted). Given the complaint’s
deficiencies detailed above, the Court finds that there is no showing of likelihood of
success on the merits at this time. Moreover, the federal abstention doctrine detailed
in Younger appears to bar the very relief plaintiff seeks given the ongoing nature of
the underlying state court proceedings. Accordingly, plaintiff’s Motion for Injunctive
Relief (doc. 2) is denied.
CONCLUSION
For the reasons set forth above, the Complaint (doc. 1) is DISMISSED.
Plaintiff is granted leave to amend his claims brought under 42 U.S.C. § 1983. The
remaining claims referenced in the Complaint (doc. 1) are DISMISSED with
prejudice. Similarly, the Motion for Injunctive Relief (doc. 2) is DENIED. The Court
reserves ruling on plaintiff’s IFP application until the submission of an amended
complaint.
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Plaintiff shall have thirty (30) days in which to file an amended complaint.
Plaintiff is advised that failure to file an amended complaint within the allotted time
may result in the entry of a judgment of dismissal.
IT IS SO ORDERED.
Dated this _1_0__th_ day of August, 2020.
________/_s_/_A_n_n_ _A_i_k_e_n_______
Ann Aiken
United States District Judge