Willis v. Multnomah County Sheriff's Office

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

STEVEN DAWAYNE WILLIS,

Case No. 3:21-cv-01881-JR

Plaintiff,

ORDER

v.

MULTNOMAH COUNTY SHERIFF’S OFFICE;

SHERIFF MIKE REESE; and

MULTNOMAH COUNTY,

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 taken into custody on June 27, 2021, but the Multnomah County

Sheriff’s Office “did not book [him] into the jail on outstanding warrants,” and he was not

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arraigned until October 29, 2021 on the outstanding warrants. He alleges he is “still in custody

not booked or being held on the charges.” Plaintiff alleges Sheriff Reese is responsible for

actions taken by the Multnomah County Sheriff’s Office. By way of remedy, plaintiff seeks

money damages, as well as a letter of apology. 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).

As an initial matter, plaintiff names as defendants the Multnomah County Sheriff’s Office

and Multnomah County, 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 Sheriff Reese,

supervisory officers are not liable under § 1983 for the acts of their subordinates. Ashcroft v.

Iqbal, 556 U.S. 662, 676 (2009).

The constitutionality of post-arrest incarceration is analyzed under the Fourteenth

Amendment. See Rivera v. County of Los Angeles, 745 F.3d 384, 390 (9th Cir. 2014); Lee v.

City of Los Angeles, 250 F.3d 668, 683-85 (9th Cir. 2001) (separately analyzing the initial arrest

under the Fourth Amendment and the post-arrest incarceration under the Fourteenth Amendment).

The Fourteenth Amendment protects against deprivations of liberty accomplished “without due

process of law.” Baker v. McCollan, 443 U.S. 137, 145 (1979). The Supreme Court has

determined conduct that “shocks the conscience” is cognizable as a due process violation. Porter

v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (quoting County of Sacramento v. Lewis, 523 U.S.

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833, 846 (1998)). For example, “a detainee has ‘a constitutional right to be free from continued

detention after it was or should have been known that the detainee was entitled to release.’” Lee,

250 F.3d at 683 (denying motion to dismiss a plaintiff's substantive due process claim because the

plaintiff sufficiently alleged that he was incarcerated for one day when the arresting police officers

should have known that he was not the fugitive).

Here, plaintiff fails to allege sufficient facts for the Court to determine whether he remained

incarcerated for a period of time after it was determined the charges should be dropped, or when

the defendants should have known he was entitled to release.1 Accordingly, plaintiff fails to state

a cognizable claim for a violation of the Fourteenth Amendment

Moreover, to the extent plaintiff is attempting to challenge ongoing criminal 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). Finally, 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

1 In fact, the Court notes that plaintiff remains in custody pending prosecution of criminal charges

in Multnomah County Circuit Court Case No. 21CR30759. See Lee v. City of Los Angeles, 250

F.3d 668, 689 (9th Cir. 2001) (court may take judicial notice of matters of public record).

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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 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.

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

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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.

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.

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IT IS FURTHER ORDERED that plaintiff’s Motion for Appointment of Counsel (ECF

No. 5) 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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