Ogden v. Ontario Oregon City Police Dept

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHAWN C. OGDEN,

Case No. 2:20-cv-02262-YY

Plaintiff,

ORDER TO DISMISS

v.

ONTARIO OREGON CITY POLICE

DEPT; ROAD RUNNER TOWING;

DALLAS BROCKETT; and

STEVEN ROMERO,

Defendants.

IMMERGUT, J.

Plaintiff, an adult in custody at the Malheur County Jail, 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

Plaintiff alleges that defendants violated his Fourteenth Amendment substantive due process

rights, as well as his rights under 42 U.S.C. §§ 1985, 1986, and 12132, by towing his vehicle without

providing a 72-hour notice. By way of remedy, plaintiff seeks money damages.

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

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

To state a claim under 42 U.S.C. § 1983, a complaint must allege that a defendant, while

acting under color of state law, caused a deprivation of the plaintiff’s federal rights. 42 U.S.C. §

1983; West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted); Taylor v. List, 880 F.2d 1040, 1045

(9th Cir. 1989) (citation omitted). A § 1983 plaintiff must establish both causation-in-fact and

2 - ORDER TO DISMISS

proximate (i.e., legal) causation. See Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir.

2008). Allegations regarding Section 1983 causation “must be individualized and focus on the duties

and responsibilities of each individual defendant whose acts or omissions are alleged to have caused

a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citations omitted).

“Sweeping conclusory allegations [regarding causation] will not suffice[.]” Id. (citation omitted).

To the extent plaintiff alleges the impoundment of his vehicle violated his substantive due

process rights under the Fourteenth Amendment, the Complaint fails to state a claim upon which

relief may be granted. The substantive protections of the due process clause bar certain

governmental actions regardless of the fairness of the procedures that are used to implement them.

Cty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998). Therefore, the substantive protections of

the due process clause are intended to prevent government officials from abusing their power or

employing it as an instrument of oppression. Lewis, 523 U.S. at 846. The Supreme Court has held

that “the substantive component of the Due Process Clause is violated by executive action only when

it ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.’” Id.

at 847. “[O]nly the most egregious official conduct can be said to be arbitrary in a constitutional

sense.” Brittain v. Hansen, 451 F.3d 982, 990 (9th Cir. 2006) (quoting Lewis, 523 U.S. at 846).

“Substantive due process is ordinarily reserved for those rights that are ‘fundamental.’”

Brittain, 451 F.3d at 990. “The protections of substantive due process have for the most part been

accorded to matters relating to marriage, family, procreation, and the right to bodily integrity[;] and

the Supreme Court has been reluctant to expand the concept of substantive due process.” Albright

v. Oliver, 510 U.S. 266, 271-72 (1994). To state a substantive due process claim, a plaintiff must

“show both a deprivation of [his] liberty and conscience shocking behavior by the government.”

3 - ORDER TO DISMISS

Brittain, 451 F.3d at 991. However, “where a particular amendment provides an explicit textual

source of constitutional protection against a particular sort of government behavior, that

Amendment, not the more generalized notion of substantive due process, must be the guide for

analyzing a plaintiff’s claims.” Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations,

internal quotations, and brackets omitted) overruled on other grounds by Unitherm Food Systems,

Inc. v. Swift-Eckrick, Inc., 546 U.S. 394 (2006); Lewis, 523 U.S. at 842. Here, plaintiff’s allegations

implicate the Fourth Amendment right to be free from unlawful search and seizure, and plaintiff may

not purse a substantive due process claim. Buford v. Mounts, Case No. CVF026187OWW DLB P,

2006 WL 657035, at *4 (E.D. Cal. March 13, 2006).

Although plaintiff does not specifically invoke his Fourth Amendment rights, “[t]he

impoundment of an automobile is a seizure within the meaning of the Fourth Amendment.” Ramirez

v. Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009) (quoting Miranda v. City of Cornelius, 429 F.3d

858, 862 (9th Cir. 2005)). A seizure conducted without a warrant is per se unreasonable under the

Fourth Amendment subject only to a few specifically established exceptions. Ramirez, 560 F.3d at

1025. In such a situation, the question is not whether the seizure was authorized by state law but

rather, whether the seizure was reasonable under the Fourth Amendment. Id. (citing Sibron v. New

York, 392 U.S. 40, 61 (1968)).

For example, the Ninth Circuit has determined that the “community caretaking” doctrine,

which allows police officers to impound vehicles that “jeopardize public safety and the efficient

movement of vehicular traffic” or that may be a target for vandalism or theft, is a relevant exception

to the seizure rule. See Ramirez, 560 F.3d at 1025 (citing South Dakota v. Opperman, 428 U.S. 364,

368-69 (1976)); see also Miranda, 429 F.3d at 864. Impoundment may be proper under the

4 - ORDER TO DISMISS

community caretaking doctrine if the driver’s violation of a vehicle regulation prevents the driver

from lawfully operating the vehicle, and it is also necessary to remove the vehicle from an exposed

or public location. Miranda, 429 F.3d at 865. Indeed, “[t]he authority of police to seize and remove

from the streets vehicles impeding traffic or threatening public safety and convenience is beyond

challenge.” Opperman, 428 U.S. at 369.

For the impoundment of his vehicle to be actionable under the Fourth Amendment, plaintiff

must show that no community caretaking exception existed at the time the vehicle was impounded.

Moreover, whether defendant Road Runner Towing was acting under color of state law when it

towed the vehicle also needs to be determined. Accordingly, plaintiff’s Complaint does not state a

claim upon which relief may be granted for violation of his rights under the Fourth Amendment.

Plaintiff’s Complaint also does not state a claim upon which relief may be granted under 42

U.S.C. §§ 1985, 1986 and 12132. The pertinent parts of § 1985, subsections (2) and (3) require

allegations of a racial or class-based discriminatory animus behind conspirators’ actions. See Burns

v. County of King, 883 F.2d 819, 821 (9th Cir. 1989); see also A & A Concrete, Inc. v. White

Mountain Apache Tribe, 676 F.2d 1330, 1333 (9th Cir. 1982). The rights protected by § 1986 are

those that are safeguarded by § 1985. Hence, a violation of § 1986 depends upon a predicate

violation of § 1985. Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1320 (9th

Cir. 1984); Mollnow v. Carlton, 716 F.2d 627, 632 (9th Cir. 1983). Plaintiff does not allege facts

establishing a claim of racial or class-based discriminatory animus. Finally, plaintiff does not allege

facts establishing a claim under Title II of the Americans With Disabilities Act, 42 U.S.C. § 12132.

See McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (in order to state a claim that

a public program or service violated Title II of the ADA, a plaintiff must show: (1) he is a “qualified

5 - ORDER TO DISMISS

individual with a disability;” (2) he was either excluded from participation in or denied the benefits

of a public entity’s services, programs, or activities, or was otherwise discriminated against by the

public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his

disability).

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.

Plaintiffis advised that his amended complaint must specifically include (1) the names of the persons

who caused or personally participated in causing the alleged deprivation of his constitutional rights,

(2) the dates on which the conduct allegedly took place, and (3) the specific conduct Plaintiff alleges

is unconstitutional. Plaintiff is advised that the amended complaint will operate as a complete

substitute for the present complaint, not as a supplement. Plaintiff is cautioned that failure to file

an amended complaint shall result in the dismissal of this proceeding.

IT IS SO ORDERED.

DATED this 12_ day of February, 2021.

United States District Judge

6 - ORDER TO DISMISS