# Alvarez v. University of Oregon

> District Court, D. Oregon · August 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10392421

## Case

- **Court:** District Court, D. Oregon
- **Decided:** August 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392421. Public record. Not legal advice.