Willis v. Schmidt

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

STEVEN DAWAYNE WILLIS,

Case No. 3:21-cv-01834-JR

Plaintiff,

ORDER

v.

MIKE SCHMIDT; CITY OF PORTLAND;

MULTNOMAH COUNTY DISTRICT

ATTORNEY’S OFFICE; STATE OF OREGON;

ELLEN F. ROSENBLUM; and OREGON

ATTORNEY GENERAL’S OFFICE,

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.

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BACKGROUND

Plaintiff alleges he was arraigned on unspecified charges on June 29, 2021 on probable

cause without having first been indicted, and then was arraigned again on July 2, 2021. He

alleges he remains in custody, presumably upon the charges for which he was arraigned. Plaintiff

alleges the parties responsible for his confinement acted negligently and in violation of his

constitutional rights and state law. Plaintiff does not allege individual participation by any of the

named defendants in the alleged violation of his rights. Plaintiff does not allege personal

involvement by any of the named defendants in the alleged violation of his rights. By way of

remedy, plaintiff seeks money damages as well as the expungement of all criminal records/history.

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

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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.

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).

As noted, plaintiff does not allege personal involvement by any of the named defendants

in the alleged violation of his rights and, accordingly, fails to state a claim against them upon which

relief may be granted under § 1983. Also, plaintiff names the Multnomah County District

Attorney’s Office in the caption of his Complaint and identifies the City of Portland as a defendant

at page two but does not allege facts that would establish municipal liability. 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).

Likewise, to the extent plaintiff seeks to bring a supervisory capacity claim against defendants

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Mike Schmidt or Ellen Rosenblum, supervisory officers are not liable under § 1983 for the acts of

their subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). In any event, defendants

Schmidt and Rosenblum are entitled to prosecutorial immunity. See Van de Kamp v. Goldstein,

555 U.S. 335, 341 (2009) (state prosecutors are entitled to absolute immunity for acts taken in their

official capacity). Defendant State of Oregon is also immune, as the Eleventh Amendment bars

suit in federal court against either a state or an agency acting under its control absent a clear and

equivocal waiver. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam)

To the extent plaintiff is challenging ongoing criminal proceedings to obtain expungement

of the records of those proceedings, principles of comity and federalism weigh against a federal

court interfering with ongoing state criminal proceedings by granting injunctive or declaratory

relief absent extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 43-54 (1971).

Moreover, a habeas petition, rather than a civil rights complaint under § 1983, is the proper vehicle

to bring claims of violation of speedy trial rights. See e.g., Ricardez v. Edwards, No. 3:21-cv-

05437-RAJ-JRC, 2021 WL 2936675, at *2 (W.D. Wash. July 13, 2021) (claims that plaintiff was

being confined in violation of right to speedy trial could only be raised in habeas petition).

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

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false arrest and imprisonment claims until conviction was invalidated); Smithart v. Towery, 79

F.3d 951, 952 (9th Cir. 1996) (Heck 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 civil suit

would impugn that conviction, Heck then requires dismissal. Id. Otherwise, the case may

proceed. Id.

Because it is not clear from the face of the Complaint whether plaintiff has been convicted

of a crime, and because plaintiff does not allege that any such conviction has been invalidated, to

the extent plaintiff alleges his current confinement results from his alleged unconstitutional

detention, plaintiff’s Complaint is subject to dismissal.

Finally, to the extent plaintiff alleges claims for relief under state law, although the Court

may exercise supplemental jurisdiction over state law claims, the Court may also decline to

exercise supplemental jurisdiction over a claim if the court has dismissed all claims over which it

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has original jurisdiction. 28 U.S.C. § 1367(c)(3). As discussed above, plaintiff’s Complaint fails

to state a plausible federal claim for relief. If plaintiff fails to file an Amended Complaint which

cures the deficiencies noted, plaintiff’s state law claims will be dismissed as well. See United

Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).

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.

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.

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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. 4) is DENIED.

IT IS SO ORDERED.

DATED this 24th day of February 2022.

/s/ Jolie A. Russo

Jolie A. Russo

United States Magistrate Judge

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