Alvarez v. University of Oregon

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

JAMES-BRENT: ALVAREZ, Case No. 6:19-cv-01071-AA

OPINION AND ORDER

Plaintiff,

vs.

LUKE SITTS, an individual; et al.,

Defendants.

AIKEN, District Judge:

Plaintiff James-Brent: Alvarez, proceeding pro se, alleges that defendants,

various University of Oregon employees and officials, violated his rights under

federal law. His claims arise out of a traffic stop by University of Oregon Police

Department (“UOPD”) officers, which culminated with UOPD officers tasing plaintiff

and concluded with plaintiff’s arrest. The claims also relate to defendants’ failure to

respond to complaints that plaintiff submitted to the University and UOPD, which

concerned the traffic stop incident. Before the Court are defendants’ Motion to

Dismiss Plaintiff’s Second Amended Complaint (doc. 41) and plaintiff’s Motion for

Leave to File a Third Amended Complaint (doc. 45). For the reasons set forth below,

defendants’ motion is granted, and plaintiff’s motion is denied.

BACKGROUND

The factual background of this case is well known to the parties and will not

be reproduced here.

Plaintiff filed this action in July 2019. When defendants moved to dismiss the

Complaint (doc. 1), plaintiff filed 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) and, later, a Motion for Leave

to File an Updated Second Amended Complaint (doc. 29).

The Amended Complaint asserted claims for violations of plaintiff’s

constitutional rights under 42 U.S.C. § 1983, conspiracy to deprive plaintiff of rights

under 42 U.S.C. § 1985 and § 1986, and violation of the Anti-Terrorism Act (“ATA”),

18 U.S.C. § 2331, et seq. Plaintiff alleged these claims against the University of

Oregon; UOPD; UOPD Officers Luke Sitts, Geri Brooks, Scott Geeting, and Stephen

Barrett; UOPD Chief Matthew Carmichael; and University President Michael H.

Schill.

In January 2020, the Court issued an Opinion and Order (doc. 37) that granted

in part and denied in part both defendants’ and plaintiff’s motions. Specifically, the

Court dismissed all claims against the University and UOPD with prejudice, the ATA

claims without leave to amend, and all remaining claims against the individual

defendants except for plaintiff’s § 1983 claim against the UOPD officers for excessive

force in violation of the Fourth Amendment. The Court then granted plaintiff leave

to amend his § 1983, § 1985, and § 1986 claims and assert any additional facts or

claims against the individual defendants.

Plaintiff filed his Second Amended Complaint (“SAC”) (doc. 38), which is

written in the same combination of what plaintiff calls “plain language” and

“CORRECT-SENTENCE-STRUCTURE-COMMUNICATIONS-PARSE-SYNTAX-

GRAMMAR,” or “C.-S.-S.-C.-P.-S.-G.-P.,” as the earlier complaints.1 The SAC alleges

the same general facts as the earlier complaints and reasserts claims under § 1983,

§ 1985, and § 1986. The amendments incorporated into the SAC include the addition

of UOPD Command Officer Don Morris as a defendant, a clearer articulation of the

federal rights that defendants allegedly violated for purposes of the § 1983 claim, and

supplemental facts supporting each claim.2

In March 2020, defendants filed a Motion to Dismiss the Second Amended

Complaint (doc. 41). Plaintiff then filed a Motion for Leave to File a Third Amended

Complaint (doc. 45) which included his Proposed Complaint.

1 The Court notes that plaintiff filed his SAC after the deadline set by the Court’s earlier

Opinion. Although the Court could dismiss this action for plaintiff’s failure to follow that order,

because of plaintiff’s pro se status and because the filing was only one day late, the Court will excuse

that delay and address the merits of defendants’ Motion to Dismiss.

2 In his Response, plaintiff asserts, for the first time, “a claim” against “the unknown Sergeant

in charge of the University’s Professional Standards Unit.” Response (doc. 51) at 2, 8. However, neither

the SAC nor the Response contains factual allegations concerning this defendant. Additionally, the

proper vehicle for adding a defendant is through a motion to amend.

STANDARD OF REVIEW

Defendants ask the Court to dismiss the SAC and order plaintiff to file a final

amended complaint asserting only a claim of excessive force against the UOPD

officers. Plaintiff asks the Court for leave to file a third amended complaint. The

Court will address the standards that apply to each motion in turn.

I. Motions to Dismiss under Rule 12(b)(6)

When ruling on a motion to dismiss, the court construes a complaint in favor

of the nonmoving party, along with taking all factual allegations as true. Odom v.

Microsoft Corp., 486 F.3d 541, 545 (9th Cir. 2007). The court considers whether the

“non-conclusory ‘factual content,’ and reasonable inferences from that content”

plausibly suggest a claim which entitles 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)). Simply reciting the elements of a cause of action and asserting “naked”

allegations without “further factual enhancement” are insufficient to state a plausible

claim. Iqbal, 556 U.S. at 678. Dismissal of the kind brought by defendants is proper

“only when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege

sufficient facts to support a cognizable legal theory.” Zixiang Li v. Kerry, 710 F.3d

995, 999 (9th Cir. 2013).

If a plaintiff is pro se, and particularly in civil rights cases, the court construes

the pleadings “liberally” and affords the plaintiff the “benefit of any doubt.” Hebbe v.

Pliler, 627 F.3d 338, 342 (9th Cir. 2010). When giving liberal construction to a pro se

civil rights complaint, however, the court “‘may not supply essential elements of the

claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d

1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.

1982)).

II. Motions for Leave to Amend

Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should freely

give leave [to amend a pleading] when justice so requires.” A district court should

apply the rule’s “policy of favoring amendments . . . with extreme liberality.” Price v.

Kramer, 200 F.3d 1237, 1250 (9th Cir. 2000) (internal quotation marks omitted). The

district court has particularly broad discretion in deciding whether to grant leave to

amend when a plaintiff has previously been permitted leave to amend. Chodos v.

West Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002). In determining whether to

grant leave to amend, the district court considers the presence of any of the following

four factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4)

futility. Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.

2001). Futility of amendment, however, “can, by itself, justify the denial of a motion

for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). A proposed

amendment is futile if it would not withstand a motion to dismiss. Moore v. Kayport

Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989) (“Leave to amend need not be

given if a complaint, as amended, is subject to dismissal.”).

However, “[u]nless 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.” Lucas v. Dep’t of Corr., 66 F.3d

245, 248 (9th Cir. 1995) (per curiam). “While [the] statement of deficiencies need not

provide great detail or require district courts to act as legal advisors to pro se

plaintiffs, district courts must at least draft a few sentences explaining the

[complaint’s] deficiencies.” Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987).

DISCUSSION

Defendants move to dismiss the SAC, and plaintiff seeks leave to amend his

complaint.

I. Defendants’ Motion to Dismiss

The SAC alleges claims under 42 U.S.C. § 1983, § 1985, and § 1986.

Defendants assert that all claims fail to state a claim and ask the Court to dismiss

all but the § 1983 excessive force claim against the individual UOPD officers.3

Defendants further request that the Court order plaintiff to file a third and final

amended complaint asserting the single claim for excessive force against the

individual UOPD officers.

A. Section 1983 Claim

To prevail on a § 1983 claim against a state official, a plaintiff must establish

that the state official “acting under the color of state law, caused the deprivation of a

federal right.” Suever v. Connell, 579 F.3d 1047, 1060 (9th Cir. 2009) (quoting Hafer

v. Melo, 502 U.S. 21, 25 (1991)). Plaintiff alleges that defendants violated a variety

of his federal rights while acting under the color of state law. Defendants assert that

they did not violate any of plaintiff’s federal rights and, therefore, the entirety of the

3 The Court notes that defendants do not concede that plaintiff has a viable excessive force

claim under § 1983, and that defendants reserve the right to raise affirmative defenses to that claim.

§ 1983 claim, excluding the excessive force claim against the UOPD officers, must be

dismissed.

Defendants argue that the § 1983 claims against the individual defendants are

barred by the Eleventh Amendment. To overcome defendants’ Eleventh Amendment

immunity and adequately state a § 1983 claim against them, plaintiff must show both

that defendants were acting in their official capacities and deprived him of a federal

right. There is no dispute that the UOPD officers were acting in their official

capacities. However, plaintiff must still allege facts that show that defendants

violated his rights.

Defendants further argue that plaintiff’s claims are similarly barred by

qualified immunity because plaintiff has not pleaded sufficient facts to show that his

rights were violated. “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).

Because defendants’ Eleventh Amendment and qualified immunity arguments

both depend on whether the SAC adequately alleges violations of plaintiff’s rights,

the Court will move forward to discuss plaintiff’s factual allegations.

1. Section 1983 Claims Against Defendants Officer Morris,

Chief Carmichael, and President Schill

To the extent that plaintiff asserts § 1983 claims against Officer Morris, Chief

Carmichael, and President Schill, defendants argue that these claims must be

dismissed because plaintiff does not allege that any of them were personally involved

in the events that occurred during the traffic stop, or that he suffered any particular

harm because of their actions. To hold an individual liable under § 1983, a plaintiff

must allege that the individual personally participated in the alleged deprivation of

the plaintiff’s rights. Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010). “[T]he plaintiff

must also demonstrate that the defendant’s conduct was the actionable cause of the

claimed injury.” Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).

“A supervisor is only liable for the constitutional violations of… subordinates if the

supervisor participated in or directed the violations, or knew of the violations and

failed to act to prevent them. There is no respondeat superior liability under [§]

1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted).

Each of plaintiff’s § 1983 alleged rights violations arise from the events that

occurred during and just after the traffic stop. There is no allegation that President

Schill or Chief Carmichael were even on the scene, much less participated in the

alleged rights violations or directed the UOPD officers to act. Plaintiff has not alleged

sufficient facts to support a § 1983 claim against Chief Carmichael and President

Schill, and these claims must be dismissed for failure to state a claim.

Concerning Officer Morris, although the SAC alleges that Officer Morris was

on scene during the traffic stop, arriving just before plaintiff was ordered out of the

vehicle, there is no allegation that he personally participated in any of the events

giving rise to plaintiff’s claims. However, the SAC does allege that Officer Morris

directed the UOPD officers to act and did not prevent the officers from taking the

actions alleged to have violated plaintiff’s rights. Accordingly, the claims against

Officer Morris are not dismissed on these grounds, but plaintiff must still establish

that the officers violated his federal rights.

2. Title 18 of the United States Code

The SAC next alleges that defendants violated a number of sections contained

in Title 18 of the United States Code, including §§ 4 (Misprision of Felony), 113

(Assault and Battery), 241 (Conspiracy), 242 (Deprivation of Rights Under Color of

Law), 249 (Racial Profiling), 1001 (False Claims), 1962 (c) and (d) (Racketeering and

Unlawful Debt), and 2236 (Warrantless Search).

For a statutory provision to be privately enforceable, it must create an

individual right. Blessing v. Freestone, 520 U.S. 329, 340 (1997). Section 1983 can

be used as a mechanism for enforcing the rights guaranteed by a particular federal

statute only if (1) the statute creates enforceable rights and (2) Congress has not

foreclosed the possibility of a § 1983 remedy for violations of the statute in question.

Id. at 340–41. “Statutes that focus on the person regulated rather than the

individuals protected create no implication of an intent to confer rights on a particular

class of persons.” Alexander v. Sandoval, 532 U.S. 275, 289 (2001) (internal

quotations and citations omitted).

All of the provisions of Title 18 cited by plaintiff are criminal statutes that tell

regulated persons what they may not do. For example, § 113 begins with

“[w]hoever… is guilty of an assault shall be punished as follows,” § 241 with “[i]f two

or more persons conspire to injure…. They shall be fined…” and § 249 with

“[w]hoever… willfully causes bodily injury…” These statutes are focused on the

regulated persons, not the individuals intended to be protected.4

Therefore, plaintiff may not bring civil actions under any of these sections, and

the sections do not create enforceable rights that can be vindicated through a § 1983

claim. Thus, these claims are dismissed.

3. Fourth Amendment Violations

The Fourth Amendment of the United States Constitution protects citizens’

rights to be free from unreasonable search and seizure of their persons or possessions

without a warrant or probable cause. Plaintiff alleges that defendants deprived him

of these rights under color of law during and after the traffic stop.

The SAC alleges that the UOPD officers violated plaintiff’s Fourth Amendment

rights to be free from unlawful search and seizure by stopping his vehicle, asking for

his license and registration and ordering him out of the vehicle, arresting him, and

searching and seizing his vehicle, all without a warrant. Sec. Am. Compl. ¶ 104.

Defendants respond that their actions before, during, and after the traffic stop did

not violate plaintiff’s Fourth Amendment rights.

The SAC alleges that Officer Sitts violated plaintiff’s right to be free from

unlawful seizure without a warrant when he stopped plaintiff’s vehicle. Police

officers need only reasonable suspicion to stop a vehicle. Terry v. Ohio, 392 U.S. 1,

30 (1968). If an officer witnesses a violation of traffic laws, that officer may lawfully

4 Compare 18 U.S.C. § 1030(g), which provides: “[a]ny person who suffers damage or loss by

reason of a violation of this section may maintain a civil action against the violator to obtain

compensatory damages and injunctive relief or other equitable relief.” The code sections plaintiff

identifies contain no equivalent provision.

stop the violating vehicle. Whren v. United States, 517 U.S. 806, 809–10 (1996). “The

temporary seizure of driver and passengers ordinarily continues, and remains

reasonable, for the duration of the stop.” Arizona v. Johnson, 555 U.S. 323, 333

(2009).

Officer Sitts stopped plaintiff’s vehicle because it did not have a rear license

plate. Plaintiff’s alleged failure to display a license plate on his vehicle violated ORS

803.540.5 Because Officer Sitts witnessed a violation of ORS 803.540, he was lawfully

permitted to stop plaintiff’s vehicle, the initial traffic stop did not violate plaintiff’s

Fourth Amendment rights, and this claim must be dismissed.

The SAC also alleges that the UOPD officers violated plaintiff’s Fourth

Amendment rights against unlawful search and seizure when they asked plaintiff to

provide his license and registration several times and when Officer Sitts ordered

plaintiff out of his vehicle. Although generally a traffic stop remains reasonable only

for the duration required to address the observed traffic violation, the officer may

5 ORS 803.540 provides:

(1) A person commits the offense of failure to display registration plates if the person

operates, on the highways of this state, any vehicle or camper that has been assigned

registration plates by this state and the registration plates assigned to the vehicle or

camper are displayed in a manner that violates any of the following:

(a) The plate must be displayed on the rear of the vehicle, if only one plate is

required.

(b) Plates must be displayed on the front and rear of the vehicle if two plates

are required.

(c) The plates must be in plain view and so as to be read easily by the public.

(d) The plate must not be any plate that does not entitle the holder thereof to

operate the vehicle upon the highways.

ORS 803.540(1).

conduct “ordinary inquiries incident to [the traffic] stop.” Rodriguez v. United States,

575 U.S. 348, 355 (2015). These inquiries typically involve “checking the driver’s

license… and inspecting the automobile’s registration and proof of insurance,” and do

not violate the driver’s Fourth Amendment rights. Id. “These checks serve the same

objective as enforcement of the traffic code: ensuring that vehicles on the road are

operated safely and responsibly.” Id. at 349. In Oregon, failure to carry or refusal to

provide a valid driver’s license to a police officer, when lawfully stopped while driving

a vehicle, is a Class C misdemeanor. ORS 807.570.6 Additionally, once the vehicle

has been lawfully stopped for a traffic violation, officers may order the driver out of

the vehicle. Maryland v. Wilson, 519 U.S. 408, 412 (1997).

As discussed, Officer Sitts lawfully stopped plaintiff’s vehicle due to the

missing rear license plate. The UOPD officers asked plaintiff repeatedly for his

license and registration, and plaintiff refused each time. Officer Sitts then ordered

plaintiff out of the vehicle. Because the officers requesting plaintiff’s license and

registration, and ordering plaintiff out of the vehicle, were within the legal bounds of

6 ORS 807.570 provides:

(1) A person commits the offense of failure to carry a license or to present a license to

a police officer if the person either:

(a) Drives any motor vehicle upon a highway in this state without a license,

driver permit or out-of-state license in the person’s possession; or

(b) Does not present and deliver such license or permit to a police officer

when requested by the police officer under any of the following

circumstances:

(A) Upon being lawfully stopped or detained when driving a vehicle.

ORS 807.570(1).

their authority, they did not violate plaintiff’s Fourth Amendment rights through

these actions, and this claim must be dismissed.

The SAC next alleges that defendants violated plaintiff’s Fourth Amendment

rights by arresting him without a warrant. The Fourth Amendment generally

prohibits arrests without a warrant, but an officer may arrest a person without a

warrant if the officer has probable cause to make the arrest. Fayer v. Vaughn, 649

F.3d 1061, 1064 (9th Cir. 2011). Arresting officers have probable cause if, 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 person in

believing that the arrested person had committed or was committing an offense.

Conner v. Heiman, 672 F3d 1126, 1132 (9th Cir. 2012).

After plaintiff was lawfully stopped for not having a rear license plate, he

repeatedly refused to provide his license and registration, violating ORS 807.570. As

mentioned, a violation of this statute is a Class C misdemeanor which is punishable

by a maximum of 30 days imprisonment, ORS 161.615(3), and a $1,250 fine, ORS

161.635(1)(c). ORS 133.310(1)(b)7 authorizes peace officers to arrest a person without

a warrant if they have probable cause to believe that the person has committed a

7 ORS 133.310 provides:

(1) A peace officer may arrest a person without a warrant if the officer has

probable cause to believe that the person has committed any of the following:

(a) A felony.

(b) A misdemeanor.

ORS 133.310(1).

misdemeanor. Plaintiff does not dispute that he refused to provide the officers with

his license and registration. Because the officers witnessed plaintiff refusing to

present his license and registration in violation of ORS 807.570, the officers

reasonably believed that plaintiff was committing the offense of failure to present a

license to a police officer.

Additionally, interfering with a police officer is prohibited by ORS 162.247,

which states that a person commits this offense if the person “refuses to obey a lawful

order by” police officers when the person knows that they are police officers. Plaintiff

does not dispute that he knew the UOPD officers were police officers, nor that he

refused to provide his license and registration to the officers which has already been

established to be a lawful order. Therefore, the UOPD officers had probable cause to

arrest plaintiff, and plaintiff’s claim of unlawful arrest in violation of the Fourth

Amendment must be dismissed.

Finally, the SAC alleges that the UOPD officers violated plaintiff’s Fourth

Amendment rights against warrantless search and seizure of his property by

searching and towing his vehicle. Although the Fourth Amendment generally

prohibits warrantless search and seizure of property, there are exceptions,

particularly with vehicles. See, e.g., South Dakota v. Opperman, 428 U.S. 364 (1976)

(inventory search of impounded vehicle); Arizona v. Gant, 556 U.S. 332 (2009) (search

of automobile incident to arrest). Additionally, officers are authorized to tow a vehicle

under the community caretaking doctrine if “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).

To support this claim, plaintiff alleges that prior to being ordered out of his

vehicle, Officer Barrett searched his vehicle “on the outside.” Sec. Amend. Compl. ¶

40. However, “[t]he exterior of a car, of course, is thrust into the public eye, and thus

to examine it does not constitute a search.” New York v. Class, 475 U.S. 106, 114

(1986) (internal citations and quotations omitted). Other than this specific allegation,

plaintiff provides no further factual allegations to explain exactly what the officers

did or when they did it, and instead repeatedly asserts that the officers unlawfully

searched and seized his vehicle with no further details. Sec. Amend. Compl. ¶ 42; ¶

43; ¶ 44; ¶ 58; ¶72; ¶ 104. To the extent that plaintiff is arguing that defendants

unlawfully seized his vehicle by towing it after his arrest, towing the vehicle was

permitted by the community caretaking doctrine and, therefore, did not violate

plaintiff’s Fourth Amendment rights. For these reasons, plaintiff has not alleged

sufficient facts to support his claim of unlawful search and seizure of his vehicle in

violation of the Fourth Amendment, and this claim must be dismissed.

In sum, plaintiff has failed to sufficiently state a claim that his Fourth

Amendment rights were violated by any of defendants’ actions, and these claims must

be dismissed.

4. The United States Constitution Article I, Section 10,

Clause 1, Contracts Clause and Bills of Attainder

The SAC also alleges that the traffic stop and subsequent traffic citations

violated both the contracts clause and bills of attainder provisions contained in

Article I, Section 10, Clause 1 of the United States Constitution. Article I, Section

10, Clause 1 states, in relevant part, “No State shall… pass any Bill of Attainder, ex

post facto Law, or Law impairing the Obligation of Contracts.”

Plaintiff appears to allege that the UOPD Officers violated the contracts clause

by stopping his vehicle. However, to come within the contracts clause, the contractual

obligation must have been impaired, and “it must have been impaired by a law of the

State. The prohibition is aimed at the legislative power of the State, and not at the…

acts of administrative or executive boards or officers, or the doings of corporations or

individuals.” New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U.S.

18, 30 (1888).8 Because plaintiff does not challenge a law, but rather individual

actions by the UOPD officers, this claim is untenable and must be dismissed.

Plaintiff also appears to assert that by issuing traffic citations, Officer Sitts

violated the Constitution’s prohibition of “bills of attainder.” SAC ¶ 101. Plaintiff

quotes Black’s Law Dictionary, which defines bills of attainder as “such special acts

of the legislature as inflict capital punishments upon persons supposed to be guilty of

high offenses, such as treason and felony, without any conviction in the ordinary

course of judicial proceedings.” Sec. Amend. Compl. ¶ 101 (emphasis added).

Additionally, since 1867 the Supreme Court has defined a bill of attainder as “a

legislative act which inflicts punishment without a judicial trial.” Cummings v. Mo.,

71 U.S. 277, 323 (1867) (emphasis added). These definitions show that the bills of

attainder provision in the Constitution, similarly to the contracts clause, is only

8 This is both the first and last time the Supreme Court has addressed this issue.

applicable in challenging a legislative action, not an individual person’s conduct, even

if taken under color of law.

Additionally, the Ninth Circuit has explained that officers may issue a citation

during a traffic stop without exceeding the scope of the traffic stop, United States v.

Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir. 2007), and ORS 810.410(2)(a)

authorizes police officers to “issue a citation to a person for a traffic violation” when

“the traffic violation is committed in the police officer’s presence.” Plaintiff does not

seem to dispute that he committed the acts giving rise to the citations, such as driving

without a driver’s license and a rear license plate, and instead argues that while

committing those acts he was not breaking the law. Plaintiff does not point to any

valid legal authority to support his position. Therefore, the UOPD officers did not

violate either the contracts clause or the bills of attainder provision contained in

Article I, Section 10, Clause 1 of the Constitution by issuing plaintiff traffic citations,

and these claims must be dismissed.

5. Right to Travel

Next, the SAC alleges that the UOPD officers violated plaintiff’s

constitutionally protected “right to travel.” Sec. Amend. Compl. ¶ 105. The Supreme

Court has recognized a fundamental right to interstate travel. Attorney General of

New York v. Soto-Lopez, 476 U.S. 898, 903 (1986) (Brennan, J., plurality opinion).

However, “[a] burden on a single mode of transportation does not implicate the

constitutional right to interstate travel. There is no fundamental right to drive. Nor

is there a fundamental right to a driver’s license.” Mendoza v. Garrett, 358 F. Supp.

3d 1145, 1173 (D. Or. 2018) (internal citations omitted).

The SAC alleges that plaintiff’s right to travel was violated, but it fails to

explain how. It states “[f]or the violation of the due-process-clause for the XIV-

Amendment is by the taking of the Plaintiff’s-secured-liberty for the right to travel

and turning it into a licensed-privilege by the UOPD-Officers-Luke Sitts, Geri Brooks,

Scott Geeting, and Steven Barrett under the color of the law.” Sec. Amend. Compl. ¶

106. It is unclear from this allegation whether plaintiff is asserting this violation in

relation to the UOPD officers stopping his vehicle or enforcing the laws which require

a driver’s license. Regardless, as already explained, the UOPD officers acted within

the legal bounds of their authority by stopping plaintiff’s vehicle, and a burden on

plaintiff’s ability to legally drive in the form of requiring a driver’s license does not

violate his right to travel.

Therefore, plaintiff’s assertion that the UOPD officers violated his

constitutional right to travel fails to state a claim and must be dismissed.

6. Fifth Amendment and Miranda Violations

The SAC alleges that the UOPD officers violated plaintiff’s Fifth Amendment

rights by failing to provide Miranda warnings before questioning him during the

traffic stop and by continuing to question him after he had asserted his rights to

silence and counsel. Defendants argue that Miranda warnings are not required

during a traffic stop because an ordinary traffic stop is not custodial.

The Fifth Amendment to the United States Constitution provides a right to be

free from compelled self-incrimination. To help protect this right, the Supreme Court

held in Miranda v. Arizona, 384 U.S. 436, 444 (1966), that statements made by

individuals during a “custodial interrogation” are inadmissible in a criminal trial if

the individual is not informed of a variety of rights such as the right to remain silent

and have an attorney present prior to questioning, commonly known as Miranda

warnings. “Custodial interrogation” means “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived

of his freedom of action in any significant way.” Id. Although a traffic stop restricts

an individual’s freedom to an extent, Miranda warnings are not required during an

ordinary traffic stop because an individual detained temporarily during the stop is

not “‘in custody’ for the purposes of Miranda.” Berkemer v. McCarty, 468 U.S. 420,

440 (1984).

Additionally, “a violation of the constitutional right against self-incrimination

[under the Fifth Amendment] occurs only if one has been compelled to be a witness

against himself in a criminal case.” Chavez v. Martinez, 538 U.S. 760, 770 (2003)

(emphasis in original). Accordingly, “failure to read Miranda warnings” to an

individual does not violate the individual’s Fifth Amendment constitutional rights

unless and until the statements made are used against the individual in a criminal

case. Id. at 772–73.

Plaintiff claims that his Fifth Amendment rights were violated when the

UOPD officers did not provide him with Miranda warnings and continued

questioning him after he had asserted his right to silence and counsel, but before he

was arrested.9 Because an ordinary traffic stop is not custodial, the UOPD officers

were not required to provide plaintiff with Miranda warnings. Further, the SAC does

not allege that any statements made by plaintiff during his encounter with the

officers have been used against him in a criminal case. Accordingly, the SAC does

not allege facts showing that the UOPD officers violated plaintiff’s Fifth Amendment

right against self-incrimination, and this claim must be dismissed.

7. Fourteenth Amendment Equal Protection Clause

Finally, the SAC alleges that the UOPD officers racially profiled plaintiff as a

white sovereign citizen. Claims asserting racial motives behind selective

enforcement of the law are properly brought under the Equal Protection Clause of the

Fourteenth Amendment. Whren, 517 U.S. at 813. To sufficiently plead a claim for

class-based racial profiling, “a plaintiff must show that the defendants acted with an

intent or purpose to discriminate against the plaintiff based on membership in a

protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166–67 (9th Cir.

2005). Alternatively, if a plaintiff does not claim class-based discrimination, the

plaintiff may claim that he “has been irrationally singled out as a ‘class of one.’”

Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1021 (9th Cir. 2011) (citing Engquist v.

Or. Dep’t of Agric., 553 U.S. 591, 601 (2008)). “To succeed on a ‘class of one’ claim, a

plaintiff must show that he was: (1) intentionally (2) treated differently than other

9 Plaintiff does not allege any facts to show that the UOPD officers attempted to converse with

him after he was put under arrest. In fact, plaintiff notes that while at the hospital he asked Officer

Sitts about the reason for his arrest, to which Officer Sitts “reminds the Plaintiff he exercised the right

to remain silent, and they are no-longer able to communicate.” Sec. Amend. Compl. ¶ 62.

similarly situated individuals, (3) without a rational basis.” Stone v. Van Wormer,

2019 WL 4197206, *8 (D. Or. Sept. 4, 2019) (internal citations omitted).

The SAC alleges two interactions between plaintiff and Officer Sitts that

plaintiff asserts support his racial profiling claim. First, the SAC alleges that during

the traffic stop Officer Sitts “accuse[d] the Plaintiff of not agreeing with the laws for

the inference of the Plaintiff-being a Sovereign-Citizen.” Sec. Amend. Compl. ¶ 38.

Second, the SAC alleges that, after plaintiff’s arrest, Officer Sitts spoke with

plaintiff’s wife on the phone and stated “‘[s]ituations like what happened don’t work

out well for the people like that,’ with the inference of the husband being a Sovereign-

Citizen.” Sec. Amend. Compl. ¶ 70. Taken as true, these allegations still fail to

adequately support plaintiff’s claim that he was racially profiled by the UOPD

officers.

Plaintiff has provided no legal authority to show that “white sovereign citizen”

is a protected class, and therefore may not claim class-based discrimination. If

plaintiff intended to assert a ‘class of one’ claim, and assuming arguendo he can

sufficiently prove that the UOPD officers intentionally singled him out for disparate

treatment, he has failed to identify any similarly situated individuals who received

different treatment. Accordingly, plaintiff’s claim that the UOPD officers racially

profiled him in violation of the Equal Protection Clause of the Fourteenth

Amendment must be dismissed.

B. Section 1985 Claim

42 U.S.C. § 1985 prohibits conspiracies to interfere with certain civil rights.

As in the First Amended Complaint, the SAC’s “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.” Opinion at 15. A plaintiff must allege three things to state a claim under

these clauses: (1) “specific facts to support the existence of the claimed conspiracy”;

(2) racial or class-based discriminatory intent; and (3) an underlying violation of his

federal rights. Burns v. Cnty. of King, 886 F.3d 819, 821 (9th Cir. 1989). “A claim

under this section must allege facts to support the allegation that defendants

conspired together. A mere allegation of conspiracy without factual specificity is

insufficient.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988);

see also Sanchez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1991)

The SAC alleges that the UOPD officers participated in several conspiracy

“meetings of their minds” when they stepped away from plaintiff’s vehicle during the

traffic stop to converse. Sec. Amend. Compl. ¶¶ 31, 32, 37, 40. It also alleges that

Officer Morris participated in the conspiracy by not stopping the other officers’

behavior during the traffic stop. Sec. Amend. Compl. ¶ 59. The SAC further alleges

that Chief Carmichael is an accessory to the officers’ conspiracy because he knew

about the conspiracy due to plaintiff sending four complaints, did not report the

officers, and failed to follow UOPD policies by not sending the complaints to the

review committee. Sec. Amend. Compl. ¶ 115. It also alleges that President Schill is

an accessory to the officers’ conspiracy because he similarly knew about the

conspiracy from plaintiff’s complaints, did not report the officers or Chief Carmichael,

and did not enforce UOPD policies. Sec. Amend. Compl. ¶ 116. These conclusory

allegations that several defendants “conspired” against plaintiff are not the kind of

specific facts needed to allege the existence of a conspiracy. Plaintiff has not alleged

any facts to show defendants agreed, even tacitly, to violate any of plaintiff’s rights.

The SAC also fails to allege facts regarding any race-based animus. Sovereign

citizen beliefs do not constitute a race. And, generally in the Ninth Circuit, § 1985(3)’s

protections may extend beyond race “only when the class in question can show that

there has been a governmental determination that its members require and warrant

special federal assistance in protecting their civil rights.” Sever v. Alaska Pulp Corp.,

978 F.2d 1529, 1536 (9th Cir. 1992) (internal quotation marks and citations omitted).

More specifically, a plaintiff must allege discrimination for membership in a class

that has been designated “a suspect or quasi-suspect classification requiring more

exacting scrutiny or that Congress has indicated through legislation that the class

required special protection.” Id.

Here, plaintiff has provided no authority that designates ‘white sovereign

citizens’ as a suspect or quasi-suspect class, nor legislation indicating that ‘white

sovereign citizens’ require special protection. Because plaintiff has failed to plead

facts demonstrating the existence of a conspiracy or a race or class-based motivation,

plaintiff’s § 1985 claim must be dismissed.

C. Section 1986 Claim

Like § 1985, § 1986 concerns conspiracies to violate rights, specifically an

individual’s failure to prevent a conspiracy. However, “[a] claim can be stated under

section 1986 only if the complaint contains a valid claim under section 1985.” Karim-

Panahi, 839 F.2d at 626. Because plaintiff’s § 1985 claim fails, this claim under

§ 1986 fails as well and must be dismissed.

II. Plaintiff’s Motion for Leave to Amend

Plaintiff’s Proposed Third Amended Complaint (doc. 45) (“Proposed

Complaint”) realleges plaintiff’s § 1983 claim, except for the Title 18 of the United

States Code sections, and plaintiff’s § 1985 and § 1986 claims. The Proposed

Complaint also adds new § 1983 claims for violations of plaintiff’s First Amendment

rights to assemble and freedom of religion, the Thirteenth Amendment, and the

Fourteenth Amendment by fabricating evidence. The Proposed Complaint further

alleges violations of § 1985 and § 1986 due to Chief Carmichael and President Schill

failing to enforce UOPD Policy 1020. Defendants oppose the requested amendments,

arguing that the amendments would be futile.

A. Section 1983 Claim

As already discussed, the SAC fails to allege facts showing violations of

plaintiff’s rights under the Fourth, Fifth, and Fourteenth Amendments, or the

contracts clause and bills of attainder provisions in Article I, Section 10, Clause 1 of

the United States Constitution, or of his right to travel. The Proposed Complaint

provides some clarity concerning plaintiff’s allegations, such as explaining that the

unknown sergeant in the UOPD Professional Standards Unit violated plaintiff’s

rights by not contacting him to let him “know that the complaint ha[d] been

documented and assigned for review.” Proposed Compl. ¶ 47. However, none of the

new or different information contained in the Proposed Complaint corrects the

deficiencies with the claims asserted in the SAC. Because plaintiff has not alleged

anything new in the Proposed Complaint concerning these claims, amendment would

be futile. Accordingly, the Court will now examine the new claims raised in the

Proposed Complaint.

1. First Amendment Rights to Assemble and Religion

The Proposed Complaint appears to allege that the UOPD officers violated

plaintiff’s First Amendment of the United States Constitution rights to assemble and

freedom of religion. The First Amendment provides that “Congress shall make no

law respecting an establishment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the right of the people peaceably

to assemble, and to petition the Government for a redress of grievances.”

Concerning plaintiff’s constitutional right to assemble, the Proposed

Complaint does not explain what assembly he was denied the right to participate in.

In fact, at no point has plaintiff alleged or provided facts to show that he was engaging

in “peaceful assembly” at the time of the traffic stop. Similarly, concerning plaintiff’s

right to freedom of religion, the Proposed Complaint does not explain how the UOPD

officers denied him that right.

The Proposed Complaint also seems to allege that the UOPD officers retaliated

against him for exercising his constitutional rights. Government officials are

prohibited from retaliating against individuals for exercising their constitutional

rights. Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019). To state a First Amendment

retaliation claim, a plaintiff must allege three things: “(1) he was engaged in a

constitutionally protected activity, (2) the defendant’s actions would chill a person of

ordinary firmness from continuing to engage in the protected activity and (3) the

protected activity was a substantial or motivating factor in the defendant’s conduct.”

O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016). A plaintiff must also establish a

causal connection between the defendant’s retaliatory animus and the plaintiff’s

injury. Bartlett, 139 S. Ct. at 1722. To establish causation, a plaintiff must show

“that the adverse action against the plaintiff would not have been taken absent the

retaliatory motive.” Id. at 1725.

When alleging a retaliatory arrest claim under the First Amendment, a

plaintiff must generally plead and prove the absence of probable cause for that arrest.

Id. If the plaintiff cannot prove the officers did not have probable cause, the claim

fails, unless the plaintiff fits into a “narrow qualification . . . for circumstances where

officers have probable cause to make arrests, but typically exercise their discretion

not to do so.” Id. at 1727. Therefore, a plaintiff may overcome the probable cause

requirement if the “plaintiff presents objective evidence that he was arrested when

otherwise similarly situated individuals not engaged in the same sort of protected

[activity] had not been.” Id.

Here, even if plaintiff were engaging in a constitutionally protected activity,

the UOPD officers had probable cause to arrest him. Plaintiff has not provided any

evidence to suggest that similarly situated individuals were treated differently than

him, so he does not fit into the narrow qualification described above. Therefore, this

amendment is futile.

2. Thirteenth Amendment

The Proposed Complaint also alleges that the UOPD officers violated plaintiff’s

Thirteenth Amendment of the United States Constitution rights by asking for his

license and registration. The Thirteenth Amendment provides “[n]either slavery nor

involuntary servitude, except as a punishment for crime whereof the party shall have

been duly convicted, shall exist within the United States, or any place subject to their

jurisdiction.” The Thirteenth Amendment does not prohibit the UOPD officers’

conduct. Instead, it prohibits “slavery” and “involuntary servitude, except as a

punishment for a crime” of which the party has been convicted. The Court cannot

imagine any way in which questions from law enforcement to obtain a driver’s license

and registration could be equated with slavery or involuntary servitude.

Additionally, as has been discussed, the UOPD officers acted within the legal bounds

of their authority by asking for plaintiff’s license and registration. Therefore, this

amendment is futile.

3. Fourteenth Amendment Fabrication of Evidence

The Proposed Complaint also alleges that the UOPD officers fabricated

evidence in violation of plaintiff’s Fourteenth Amendment rights, also known as a

Devereaux claim in this Circuit. “A Devereaux claim is a claim that the government

violated the plaintiff’s due process rights by subjecting the plaintiff to criminal

charges based on deliberately-fabricated evidence.” Bradford v. Scherschligt, 803

F.3d 382, 386 (9th Cir. 2015) (citing Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th

Cir. 2001)). Devereaux states that “there is a clearly established constitutional due

process right not to be subjected to criminal charges on the basis of false evidence

that was deliberately fabricated by the government.” Devereaux, 263 F.3d at 1074.

To prevail on a Devereaux claim, “the plaintiff must first point to evidence he contends

the government deliberately fabricated.” Scherschligt, 803 F.3d at 386. Next, “a

plaintiff must [show] that (1) the defendant official deliberately fabricated evidence

and (2) the deliberate fabrication caused the plaintiff’s deprivation of liberty.”

Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017) (citation omitted). However, even

if a plaintiff does not present direct evidence that the government’s actions were

deliberate, the plaintiff may use one of two “circumstantial methods” to show that the

falsification was deliberate. Scherschligt, 803 F.3d at 386. A plaintiff must, “at a

minimum,” allege facts showing that either “(1) Defendants continued their

investigation of [the plaintiff] despite the fact that they knew or should have known

that he was innocent; or (2) Defendants used investigative techniques that were so

coercive and abusive that they knew or should have known that those techniques

would yield false information.” Devereaux, 263 F.3d at 1076.

The Proposed Complaint alleges that the UOPD officers fabricated evidence

that “the plaintiff was engaged in traffic, and further, by claiming the plaintiff was

under arrest, with the plaintiff resisting that arrest.” Proposed Compl. at 32. To the

extent that plaintiff is claiming that the UOPD officers deliberately fabricated

evidence that he broke traffic laws because he was not engaged in an activity which

requires license plates and a driver’s license, which he refers to as “traffic,” this claim

is futile. Plaintiff seems to believe that he was not breaking any laws when he was

pulled over because laws requiring a driver’s license and license plates to operate a

private automobile are inherently unconstitutional. However, it has long been

established that “[t]he use of the public highways by motor vehicles, with its

consequent dangers, renders the reasonableness and necessity of regulation

apparent. The universal practice is to register ownership of automobiles and to

license their drivers.” Reitz v. Mealey, 314 U.S. 33, 36 (1941), overruled in part on

other grounds by Perez v. Campbell, 402 U.S. 637, 652–54 (1971). Accordingly, “[a]ny

appropriate means adopted by the states to insure competence and care on the part

of its licensees and to protect others using the highway is consonant with due

process.” Id.

Because plaintiff admits that he was driving without license plates and a

driver’s license, and those activities are validly regulated, he cannot demonstrate that

the UOPD officers deliberately fabricated evidence of him violating the law through

these actions because his admission necessarily shows that the evidence was not

fabricated. Therefore, plaintiff’s claim that the UOPD officers fabricated evidence of

him engaging in an activity that may be regulated by the state is futile.

Concerning plaintiff’s arrest and subsequent criminal charges, plaintiff alleges

that he was “[falsely] arrested for [allegedly] resisting arrest, [allegedly] interfering

with a police officers, and [alleged] assault of police officers.” Proposed Compl. ¶ 31

(alterations in original). According to plaintiff, this is a fabrication of evidence

because he “could not have resisted arrest, because it was never ordered that he is

under arrest, therefore, the plaintiff cannot resist something that didn’t exist due to

the fact there is no arrestable crime committed by the plaintiff.” Id. This does not

tell the Court specifically what evidence the UOPD officers allegedly deliberately

fabricated to support the criminal charges. However, because it is likely that plaintiff

intended to allege that the UOPD officers deliberately fabricated evidence in their

arrest reports, the Court will proceed under this assumption.

Even assuming that plaintiff intends to claim that the UOPD officers

deliberately fabricated evidence in their arrest reports that plaintiff was under arrest

at the time he was ordered out of his vehicle, this amendment is futile. The Proposed

Complaint does not allege what evidence was provided to whom that led to

deprivation of his liberty other than that Chief Carmichael and President Schill

received the allegedly fabricated evidence and that they “failed to remain

independent and objective when dealing with the plaintiff’s complaint, and thereby,

based upon the fabricated evidence of the UOPD officers alleged claims, did support

the racial profiling of the plaintiff as a sovereign citizen.” Proposed Compl. at 38. As

discussed, to prevail on a Devereaux claim plaintiffs must allege facts to show that

the fabricated evidence caused the deprivation of their liberty. Plaintiff has not

alleged that Chief Carmichael and President Schill were involved in his arrest,

detention, or subsequent charges and, therefore, cannot show that the allegedly

fabricated evidence presented to them caused the arrest, detention, or subsequent

charges. Additionally, even if plaintiff is arguing that the fabricated evidence led to

the alleged conspiracy under § 1985 and § 1986, this amendment is still futile for the

reasons set forth below.

Therefore, this amendment alleging a violation of plaintiff’s Fourteenth

Amendment rights by fabrication of evidence would be futile.

B. Section 1985 and 1986 Claims

The Proposed Complaint realleges plaintiff’s § 1985 and § 1986 claims against

all defendants, but it fails to provide additional factual support than what was alleged

in the SAC. Because these claims have already been shown to be inadequately

pleaded, amendment would be futile.

The Proposed Complaint also alleges that Chief Carmichael and President

Schill conspired to violate plaintiff’s rights by failing to enforce UOPD Policy 1020.10

However, the policy manual in which this policy is contained states, at the very

beginning, that “[v]iolations of any provision of any policy contained within this

manual shall only form the basis for departmental administrative action, training or

discipline.” UOPD Policy Manual 106.1.1. Thus, plaintiff may not sue for a violation

of this policy, and this amendment would be futile.

10 The Proposed Complaint also makes this allegation against an unknown Seargent of the

UOPD Professional Standards Unit. The Court will not discuss this proposed defendant because this

claim is also futile for the reasons documented below.

C. Summary

The Proposed Complaint does not correct any of the deficiencies in the claims

alleged in the SAC. And, although it alleges new claims and theories of liability, the

Proposed Complaint does not allege facts sufficient to show that plaintiff is entitled

to relief on any of those claims or theories. Thus, the Court concludes that plaintiff’s

proposed amendments would be futile. Because the proposed amendments are futile,

and plaintiff has already had an opportunity to amend his claims after receiving

notice from the Court about the deficiencies in the First Amended Complaint and

proposed SAC, the Court concludes that, at this point, it is clear that no amendment

could remedy these defects. This case will proceed on one claim: plaintiff’s § 1983

claim for excessive force against UOPD Officers Sitts, Barrett, Geeting, and Brooks

as alleged in the Second Amended Complaint. Plaintiff does not need to file a Third

Amended Complaint. Plaintiff’s Motion for Leave to File a Third Amended Complaint

is, therefore, denied.

CONCLUSION

Defendants’ Motion to Dismiss the Second Amended Complaint (doc. 41) is

GRANTED. Plaintiff’s Motion for Leave to File a Third Amended Complaint (doc. 45)

is DENIED.

IT IS SO ORDERED.

Dated this _2_5_t_h_ day of August 2020.

________/_s_/A__n_n_ _A_i_k_e_n_______

Ann Aiken

United States District Judge