Willis v. Portland Police Bureau

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

STEVEN DAWAYNE WILLIS,

Case No. 3:21-cv-01741-JR

Plaintiff,

ORDER

v.

PORTLAND POLICE BUREAU; FELIPE

PEDRO-LOPEZ; D. INTERIAN-PACHO;

And LIEUTENANT JASON ANDERSEN,

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 he was arrested on June 26, 2021, by two police officers and taken into

custody “without a warrant for a Class A felony.” Plaintiff also alleges the police report stated

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the officers seized plaintiff’s property without a warrant. Plaintiff alleges these actions violated

his Fourth Amendment right to be free from unlawful search and seizure and his due process rights,

and also constituted unlawful imprisonment, harassment, intimidation, coercion, slander, and

defamation. 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

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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 an initial matter, plaintiff names as one defendant the Portland Police Bureau, 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). Moreover, although plaintiff identifies

three individual police officers in the caption of his Complaint, he does not allege personal

participation by any of the three in the alleged violation of his rights. See Taylor v. List, 880

F.2d 1040, 1045 (9th Cir. 1989) (“Liability under section 1983 arises only upon a showing of

personal participation by the defendant” in the alleged constitutional deprivation).

A claim for damages for an allegedly unconstitutional 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); see also Guerrero v. City of Gates, 442 F.3d 697, 703 (9th Cir. 2006) (holding

wrongful arrest, malicious prosecution, and conspiracy to bring false charges barred by Heck).

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The Heck rule also applies to Fourth Amendment claims based on allegations of unlawful search

and seizure of property. See Whitaker v. Garcetti, 486 F.3d 572, 583-84 (9th Cir. 2007) (Heck

bars a plaintiff’s claims challenging the search and seizure of evidence upon which criminal

charges were based).

Heck applies 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 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.

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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 and the alleged illegal seizure of his property, 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 decline to exercise

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

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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.

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 the amended complaint will operate as a complete substitute for the present complaint, not as

a supplement. Plaintiff is further 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

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