Menefee v. Fisher

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LEANDREW LARONN MENEFEE,

Case No. 3:20-cv-01497-AC

Plaintiff,

ORDER TO DISMISS

v.

TIGARD POLICE DEPARTMENT;

TRI MET PUBLIC TRANSPORTAION;

and WASHINGTON COUNTY JAIL,

Defendants.

MOSMAN, Judge.

Plaintiff, an adult in custody at the Coffee Creek Correctional Institution, brings this civil

rights action pursuant to 42 U.S.C. § 1983. Pursuant to an Order entered this date, the Court granted

Plaintiff’s Application to Proceed In Forma Pauperis. However, for the reasons set forth below, the

Court dismisses Plaintiff’s Complaint.

1 - ORDER TO DISMISS

BACKGROUND

In the caption of his Complaint, plaintiff identifies as defendants the “Tigard Police

Department, Tri Met Public Transportation, & Washington County Jail.” At page two of the

Complaint, however, he lists the defendants as “Tigard Police Department Officer Fisher (official

capacity),” “Tri Met Public Transportation Fair Inspectors of Washington Square Mall,” and

“Washington County Jail.”

Plaintiff alleges that on September 19, 2019, he was detained and falsely arrested and taken

to the Washington County Jail. Plaintiff does not allege Officer Harris participated in the detention

and arrest, and does not identify any of the other officers involved. He alleges he was charged with

interfering with an officer, that he was released on bail the next day, and that the charge was

subsequently dismissed. By way of remedy, plaintiff seeks money damages.

Plaintiff also filed an “Emergency Ex Parte Motion for Injunctive Relief to Stop Irrepearable

Harm” and a Motion for Appointment of Counsel. His motion for injunctive relief seeks his

immediate release from custody.

STANDARDS

A district court must dismiss an action initiated by a prisoner seeking redress from a

governmental entity or officer or employee, if the Court determines that the action (i) is frivolous

or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief

against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2) & 1915A(b).

When a plaintiff is proceeding pro se, the court must construe the pleadings liberally and afford the

plaintiff the benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Moreover, before

dismissing a pro se civil rights complaint for failure to state a claim, the court supplies the plaintiff

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with a statement of the complaint’s deficiencies. Karim-Panahi v. Los Angeles Police Dept., 839

F.2d 621, 623-24 (9th Cir. 1988); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se

litigant will be given leave to amend his or her complaint unless it is clear that the deficiencies of

the complaint cannot be cured by amendment. Karim-Panahi, 839 F.2d at 623; Lopez v. Smith, 203

F.3d 1122, 1130-31 (9th Cir. 2000).

DISCUSSION

I. Procedural Deficiencies

Pursuant to Rule 10(a) of the Federal Rules of Civil Procedure, “[t]he title of the complaint

must name all the parties; the title of other pleadings, after naming the first party on each side, may

refer generally to other parties.” As noted, the defendants identified in the caption of plaintiff’s

Complaint differ from those identified at page two. Should plaintiff file an Amended Complaint

curing the substantive deficiencies noted below, the Court advises plaintiff to clearly identify all

intended defendants in the caption thereof.

II. Substantive Deficiencies

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

that a right secured by the Constitution or laws of the United States was violated, and (2) that the

alleged violation was committed by a person acting under the color of state law. See West v. Atkins,

487 U.S. 42, 48 (1988). A plaintiff must also allege that he suffered a specific injury as a result of

a particular defendant’s conduct and an affirmative link between the injury and the violation of his

rights. See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362,

371-72, 377 (1976).

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Here, plaintiff does not identify the individuals involved the alleged denial of his

constitutional rights. Although he identifies Tigard Police Officer Fisher as a defendant at page two

of the Complaint, plaintiff does not set forth any actions taken by this specific officer. Likewise,

although plaintiff identifies “Fair Inspectors of Washington County Square Mall,” he does not

identify the individual fair inspectors or their involvement in his arrest.1

“Persons” under 42 U.S.C. § 1983 are state and local officials sued in their individual

capacities, private individuals and entities which act under color of state law, and/or the local

governmental entity itself. Vance v. County of Santa Clara, 928 F.Supp. 993, 995-96 (N.D. Cal.

1996). The “Washington County Jail” is managed by and/or a department of Washington County,

but it is not a “person” subject to suit under § 1983; likewise the “Tigard Police Department” which

is manages by and/or a department of the City of Tigard. See e.g., United States v. Kama, 394 F.3d

1236, 1239 (9th Cir. 2005) (“municipal police departments and bureaus are generally not considered

‘persons’ within the meaning of Section 1983”); Rodriguez v. Cnty. of Contra Costa, Case No. C

13-02516 SBA, 2013 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013) (“[a]lthough municipalities, such

as cities and counties, are amenable to suit under Monell, sub-departments or bureaus of

municipalities, such as the police departments, are not generally considered ‘persons’ within the

meaning of § 1983”) (citing Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995)). Therefore, plaintiff

1The use of “Doe Defendants” is generally disfavored in federal court because, as a practical

matter, it is usually impossible to serve a summons and pleading on an anonymous defendant. See

Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Nonetheless, the use of Doe Defendants

may be necessary when a plaintiff cannot discover the identity of the defendant before filing the

operative pleading. The burden of identifying and serving any defendant remains at all times on the

plaintiff, however, and the court will not undertake to investigate the name and identity of an

unnamed defendant.

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cannot pursue any § 1983 civil rights claims against the “Washington County Jail” or the “Tigard

Police Department.”

To the extent plaintiff intends to assert a claim against the “TriMet Public Transportation,”

his allegations are also insufficient. A municipal entity is liable under § 1983 only if the plaintiff

alleges his constitutional injury was caused by employees acting pursuant to the municipality’s

policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977); Monell,

436 U.S. at 691 (1978). TriMet Public Transportation may not be held vicariously liable under §

1983 simply based on allegedly unconstitutional acts of its employees. Board of Cty. Comm’rs. v.

Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691. Instead, the municipalities may be held

liable “when execution of a government’s policy or custom . . . inflicts the injury.” Monell, 436 U.S.

at 694. Plaintiff does not allege facts supporting a claim that the actions allegedly taken in this case

amounted to execution of a government policy or custom. Accordingly, plaintiff’s claims against

TriMet Public Transportation must be dismissed.

III. Motion for Preliminary Injunction

The Court DENIES plaintiff’s Motion for Preliminary Injunction as plaintiff has not

established a likelihood of success on the merits. See Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 20 (2008). Plaintiff cannot obtain a temporary restraining order or injunction to compel his

release from custody. A writ of habeas is the exclusive remedy for a prisoner who seeks “‘immediate

or speedier release’” from confinement. Skinner v. Switzer, 562 U.S. 521, 533-34 (2011) (quoting

Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) ); see also Preiser v. Rodriguez, 411 U.S. 475, 500

(1973) (“we hold today that when a state prisoner is challenging the very fact or duration of his

physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate

5 - ORDER TO DISMISS

release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas

corpus”). Because a petition for writ of habeas corpus is the exclusive method by which a prisoner

may seek release from custody, a temporary restraining order or injunction in a civil rights action is

inappropriate.

IV. Motion for Appointment of Counsel

Generally, there is no constitutional right to counsel in a civil case. United States v. 30.64

Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). However, pursuant to 28 U.S.C. § 1915(e), this

Court has discretion to request volunteer counsel for indigent plaintiffs in exceptional circumstances.

Agyeman v. Corrections Corporation of America, 390 F.3d 1101, 1103 (9th Cir. 2004) (citing

Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984)). While the Court may request volunteer

counsel in exceptional cases, it has no power to make a mandatory appointment. Mallard v. U.S.

Dist. Court of Iowa, 490 U.S. 296, 301-08 (1989).

In order to determine whether exceptional circumstances exist, the Court evaluates “the

likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to

articulate his claims ‘in light of the complexity of the legal issues involved.’” Agyeman, 390 F.3d

at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). However, “[n]either

of these factors is dispositive and both must be viewed together before reaching a decision on request

of counsel under [former] section 1915(d).” Wilborn, 789 F.2d at 1331; Terrell v. Brewer, 935 F.2d

1015, 1017 (9th Cir. 1991).

In this action, plaintiff has demonstrated sufficient ability to articulate his claims. As noted,

this case involves allegations of false imprisonment; the facts and legal issues involved are not of

substantial complexity to necessitate appointment of counsel. Accordingly, at this stage of the

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proceeding, there are no exceptional circumstances that require the appointment of counsel under

§ 1915(e).

CONCLUSION

Based on the foregoing, the Court DISMISSES Plaintiff's Complaint. Plaintiff may file an

Amended Complaint, curing the deficiencies noted above, within 30 days of the date of this order.

Plaintiff is advised that failure to file an Amended Complaint shall result in the dismissal of this

proceeding, with prejudice.

The court DENIES plaintiff's Emergency Ex Parte Motion for Injunctive Relief (ECF No.

4) and Motion for Appointment of Counsel (ECF No. 5).

IT IS SO ORDERED.

DATED this 6th day of November, 2020.

Michael W. Mosman

Michael W. Mosman

United States Magistrate Judge

7 - ORDER TO DISMISS