# Willis v. Portland Fire & Rescue

> District Court, D. Oregon · February 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10394397

## Case

- **Court:** District Court, D. Oregon
- **Decided:** February 24, 2022
- **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

STEVEN DAWAYNE WILLIS,
Case No. 3:21-cv-01883-JR
Plaintiff,
ORDER
v.

PORTLAND FIRE & RESCUE;
CAPTAIN BRIAN CUMMINGS;
PORTLAND POLICE BUREAU;
and OFFICER CRAIG GAULT,

Defendants.

RUSSO, Magistrate Judge.

Plaintiff, an adult in custody at the Multnomah County Inverness Jail, brings this civil
rights action pursuant to 42 U.S.C. 1983. Pursuant to an Order entered this date, the Court
granted plaintiffs Application to Proceed In Forma Pauperis. For the reasons set forth below,
plaintiff must file an Amended Complaint and, further, the Court denies plaintiff’s Motion for
Appointment of Counsel.
BACKGROUND
Plaintiff alleges that Portland Fire and Rescue Captain Cummings and Portland Police
Officer Gault communicated via email and referred to plaintiff as a suspected arsonist, which led

1 - ORDER
to plaintiff’s detention. He identifies the rights infringed by these defendants’ actions as “slander,
defamation, harassment, 4th Amendment violation, due process right(s) violation, mental anguish,
pain & suffering, 14th Amendment violation, negligence, discrimination.” By way of remedy,
plaintiff seeks money damages. Plaintiff also moves for appointment of counsel.
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
I. Complaint

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.

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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).
Plaintiff’s claim that defendants Cummings and Gault falsely accused him of arson in their
email communications fails to state a claim upon which relief may be granted under § 1983. The
publication of false statements may well raise a state law defamation claim, but an allegation of
false statements, without more, does not state a claim under § 1983, even when those statements
are made under color of state law. See Paul v. Davis, 424 U.S. 693, 701-10 (1976); see also

Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (claim of slander by police officer may
allege tort claim in state court but is not cognizable in federal court because there is no violation
of a federally protected right).
To the extent plaintiff is asserting that false statements led to his wrongful detention, his
claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994). A claim for damages for an allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid is not cognizable under § 1983, “unless
and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant
of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). Heck has also been
applied to pretrial detainees and to claims arising out of pending charges. Alvarez-Machain v.

United States, 107 F.3d 696, 700–701 (9th Cir. 1996); see also Cabrera v. City of Huntington Park,
159 F.3d 374, 380 (9th Cir. 1988) (Heck barred plaintiff’s false arrest and imprisonment claims
until conviction was invalidated); Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (Heck

3 - ORDER
barred plaintiff’s claims that defendants lacked probable cause to arrest him and brought
unfounded charges against him). However, the Supreme Court has announced that the Heck rule
bars an action only if there is an existing conviction. See Wallace v. Kato, 549 U.S. 384, 393
(2007).
In Wallace, the Supreme Court held that Heck does not encompass the principle that “an
action which would impugn an anticipated future conviction cannot be brought until that
conviction occurs and is set aside.” Id. Instead of requiring dismissal of civil claims filed in the
shadow of an impending criminal case under Heck, the Supreme Court noted that if a plaintiff files
a § 1983 false arrest claim before he is convicted, or “any other claim related to rulings that likely

will be made in a pending or anticipated criminal trial, it is within the power of the district court,
and in accord with common practice, to stay the civil action until the criminal case or the likelihood
of a criminal case is ended.” Id. at 393-94. If the plaintiff is then convicted, and the stayed civil
suit would impugn that conviction, Heck then requires dismissal. Id. Otherwise, the case may
proceed. Id.
In addition, plaintiff does not allege facts that would establish municipal liability on the
part of defendants Portland Fire & Rescue or Portland Police Bureau. See Monell, 436 U.S. at
690-91. 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; a
municipality may not be held vicariously liable under § 1983 simply based on the allegedly

unconstitutional acts of its employees. Mt. Healthy City Sch. Dist. Bd. Of Ed. v. Doyle, 429 U.S.
274, 280 (1977); Board of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997).

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Finally, to the extent plaintiff’s Complaint is construed as stating claims under state law,
because the Complaint fails to state a federal claim, the Court will decline to exercise supplemental
jurisdiction. See Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (“[a] court may decline to
exercise supplemental jurisdiction over related state-law claims once it has ‘dismissed all claims
over which it has original jurisdiction’”); Gini v. Las Vegas Metro. Police Dept., 40 F.3d 1041,
1046 (9th Cir. 1994) (when federal law claims are eliminated before trial, the court generally
should decline jurisdiction over state law claims and dismiss them without prejudice).
II. Motion for Appointment of Counsel
Plaintiff moves for a court-appointed attorney. 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, under 28 U.S.C. § 1915(e), this Court has discretion to request volunteer
counsel for indigent parties in exceptional circumstances. Wood v. Housewright, 900 F.2d 1332,
1335 (9th Cir. 1990); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). While this
Court may request volunteer counsel in exceptional cases, it has no power to make a mandatory
appointment. Mallard v. United States Dist. Ct. of Iowa, 490 U.S. 296, 301-08 (1989).
In order to determine whether exceptional circumstances exist, this Court evaluates the
party’s likelihood of success on the merits and the ability of the party to articulate his or her claim
pro se in light of the complexity of the legal issues involved. Wood, 900 F.2d at 1335-36.
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.

5 - ORDER
It is not appropriate to appoint counsel under 28 U.S.C. § 1915(e) when the Court
determines a Complaint should be dismissed under 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
Accordingly, the Court denies plaintiff’s motion for appointment of counsel.
CONCLUSION
Based on the foregoing, IT IS ORDERED that plaintiff must 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, or failure to cure the deficiencies noted above, shall
result in the dismissal of this proceeding.
IT IS FURTHER ORDERED that plaintiff’s Motion for Appointment of Counsel (ECF

No. 3) is DENIED.
IT IS SO ORDERED.
DATED this 24th day of February 2022.

/s/ Jolie A. Russo
Jolie A. Russo
United States Magistrate Judge

6 - ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10394397. Public record. Not legal advice.