Bailey v. Hoffman

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EDWARD BAILEY,

Case No. 3:23-cv-01750-JR

Plaintiff,

ORDER

v.

KEN MCCLEOD; MIKE SCHMIDT;

OFFICER HILL; OFFICER BURNS;

JESSE HOFFMAN; CHRISTOPHER

RAMRAS; and ETHAN BODEGOM,

Defendants.

NELSON, District Judge

Plaintiff brings this 42 U.S.C. § 1983 civil rights action as a self-represented litigant.

Currently before the Court is plaintiff’s Fourth Amended Complaint (ECF No. 39).

BACKGROUND

Plaintiff originated this action by filing a Complaint (ECF No. 1) containing claims

premised upon a December 2022 arrest; plaintiff alleged claims of false arrest, malicious

prosecution, defamation, and intentional infliction of emotional distress against a private

individual, two Portland Police Bureau officers, an assistant district attorney, and plaintiff’s

public defender. Plaintiff subsequently filed an Amended Complaint (ECF No. 24) adding

numerous new defendants and alleging a variety of additional claims unrelated to the December

2022 incident. On May 16, 2024, Magistrate Judge Jolie A. Russo issued an Order (ECF No.

28) which, among other things, dismissed the Amended Complaint pursuant to 28 U.S.C. §

1915(e) without prejudice. Judge Russo advised plaintiff of the deficiencies of his Amended

Complaint and gave him leave to file a motion to amend within 30 days.

On May 31, 2024, plaintiff filed a Proposed Amended Complaint (ECF No. 36). In it,

plaintiff asserted a version of his original claims relating to the events that transpired in

December 2022, but added two new defendants, Multnomah County Sheriff’s Officer Sean Hill

and Multnomah County District Attorney Mike Schmidt. Plaintiff also realleged claims which

Judge Russo had dismissed in her May 16, 2024, Order. On June 4, 2024, Judge Russo issued an

Order (ECF No. 38) which, among other things, noted that plaintiff’s pleading was “now in its

fourth iteration and plaintiff has not stated any additional plausible claims. Indeed, although

phrased differently, the [Proposed Amended Complaint] continues to pursue unviable claims and

legal theories.” Judge Russo concluded that plaintiff “may proceed with the claims alleged in his

original complaint and no further amendments are allowed, at least at this stage in the

proceedings and for the purposes of expanding the temporal/legal bases of liability.” Judge

Russo instructed plaintiff to file an amended complaint, entitled “Fourth Amended Complaint,”

“in accordance with this Order (i.e., alleging only claims premised on the December 2022 events

alleged in the original complaint, but with the removal of defendant Scannell, and addition of

defendants Schmidt and Hill).”

Plaintiff filed his Fourth Amended Complaint (ECF No. 39).1 Plaintiff names as

defendants the individuals listed in the caption above: Ken McLeod, who is a private individual;

Multnomah County Sheriff’s Officer Hill; Multnomah County Sheriff’s Officer Burns;

Multnomah County District Attorney Mike Schmidt; Deputy District Attorney Jesse Hoffman;

Multnomah County Circuit Court Judge Christopher Ramras; and public defender Ethan

Bodegom. Plaintiff alleges that on December 29, 2022, he had a verbal altercation with

1 Due to an apparent clerical error, four days later plaintiff filed another, identical Fourth

Amended Complaint (ECF No. 40), which is hereby STRICKEN from the record as duplicative.

defendant McLeod and alleges that McLeod provided false video evidence to defendants Burns,

Schmidt, and Hoffman. He alleges Hoffman then conspired with these defendants to create a

probable cause affidavit on December 29, 2022, which resulted in plaintiff’s arrest. Although

the circumstances are unclear from the allegations contained in the Fourth Amended Complaint,

plaintiff was apparently re-arrested by Burns on December 30, 2022.

Plaintiff’s arrest(s) resulted in charges against plaintiff in two cases, State of Oregon v.

Edward Earl Bailey, Multnomah County Circuit Court Case No. 22CR62319, and State of

Oregon v. Edward Earl Bailey, Multnomah County Circuit Court Case No. 22CR62478. 2 In

Case No. 22CR62319, plaintiff was charged with driving under the influence of intoxicants,

driving with a suspended or revoked license, escape in the second degree, interfering with a

peace officer, felon in possession of a restricted weapon, criminal mischief in the second degree,

criminal trespass in the second degree, disorderly conduct in the second degree, and menacing.

Following a jury trial before Judge Ramras in December 2023, Plaintiff was ultimately convicted

in Case No. 22CR62319 of felon in possession of a restricted weapon, escape in the second

degree, and criminal driving with a suspended license.

In Case No. 22CR62478, plaintiff was charged with criminal mischief in the first degree,

menacing, disorderly conduct in the second degree, and criminal trespass in the second degree.

These charges were dismissed in November 2023.

2 The Court may take judicial notice of undisputed matters of public record from plaintiff’s state

court cases which have a direct relation to matters at issue. See Wilkins v. Corr. Officers, No.

22-55745, 2024 WL 977679, at *1 n.2 (9th Cir. Mar. 7, 2024) (stating that courts “may take

judicial notice of legal proceedings”); Karas v. Cal. Dep’t of Corr. & Rehab, No. 21-15905,

2023 WL 8889552, at *1 n.3 (9th Cir. Dec. 26, 2023) (noting that the Ninth Circuit has held that

courts “may take judicial notice of undisputed matters of public record” including records in

state courts) (citation omitted).

Plaintiff alleges the charges brought against him in Case No. 22CR62478 violated his due

process rights, although he does not allege how those rights were violated. Plaintiff then alleges

the following claims against Hoffman, Burns, Hill, and Bodegom:

Defendant Deputy District Attorney Jesse Hoffman had supervising Sgt. Officer

for Officer Hill testify as “Witness” that there was an “Dragnet” aka; All Point

Bulletin (APB) for Claimant/Plaintiff issued by Defendant Officer Burns. Officer

Hill arrested me on December 29, 2023 [sic] and testified under the penalty of

perjury that there was no “Dragnet.” Claimant/Plaintiff filed a complaint against

Officer Hill that has not been resolved on December 29, 2022. The charges were

dismissed in November 2023 on Case #22-CR-62478.

Defendant Ethan Bodegom was fired by Claimant/Plaintiff, and Claimant/Plaintiff

filed a “Bar Complaint because Defendant Ethan Bodegom refused to get the

stamped date of the “False Video Evidence” provided by Defendant Officer

Burns, Defendant Ken McLeod video was used against Claimant/Plaintiff for

“Sentencing Enhancement” from the dismissed case #22-CR-62478, and applied

it in case #22-CR-62319.

Finally, plaintiff reiterates claims wholly unrelated to the December 2022 incident, but

which instead pertain to the alleged denial of access to the courts in connection with a separate

case filed in this Court, Bailey v. Multnomah County Sheriff, et al., Case No. 3:22-cv-0042-YY.

As noted, however, Judge Russo specifically forbade plaintiff from including this claim in his

Fourth Amendment Complaint.

LEGAL STANDARDS

A district court must dismiss an action initiated by a person granted leave to proceed in

forma pauperis who is 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. 28 U.S.C. § 1915(e)(2). 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 right complaint for

failure to state a claim, the court must supply 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 the complaint’s deficiencies 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

“Section 1983 creates a private right of action against individuals who, acting under color

of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d

1070, 1074 (9th Cir. 2001). Therefore, to state a claim under Section 1983, a plaintiff must

allege facts from which a court may infer “(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 color of state law.” Campbell v. Wash. Dep’t of Soc. Servs, 671 F.3d 837, 842 n.5

(9th Cir. 2011) (citing Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987)).

I. Defendant McLeod

Plaintiff has not stated a § 1983 claim for damages against defendant McLeod for

providing information to police or testifying at plaintiff’s trial because McLeod is a private

citizen and is not alleged to be acting under color of state law. See Price v. Hawaii, 939 F.2d

702, 707-08 (9th Cir. 1991) (“]P]rivate parties are not generally acting under color of state law.”)

McLeod’s sharing of video footage with police officers was not an act “performed under color of

state law.” See Stanley v. Goodwin, 475 F.Supp.2d 1026, 1039 (D. Haw. 2006) (finding private

store security guard who detained plaintiff for shoplifting and showed surveillance video to

responding arresting police officer not acting under color of state law), aff’d 262 F.App’x 786

(9th Cir. 2007). Likewise, “[i]t is beyond question that, when a private party gives testimony in

open court in a criminal trial, that act is not performed ‘under color of law.’” Brisco v. LaHue,

460 U.S. 325, 329-30 (1983).

II. Defendant Bodegom

Plaintiff has not stated a § 1983 claim for damages against defendant Bodegom, his

court-appointed attorney. It is well established that defense attorneys and public defenders are

considered private actors, and functions that a defense attorney performs in connection with a

legal proceeding do not constitute action under color of law to establish federal jurisdiction over

these claims. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that “a public

defender does not act under color of state law when performing a lawyer’s traditional functions

as counsel to a defendant in a criminal proceeding”); see also Miranda v. Clark County, Nevada,

319 F.3d 465, 468 (9th Cir. 2003) (explaining that a defense attorney’s “function is to represent

his client, not the interests of the state or county” and therefore, “as a matter of law, . . . [he is]

not a state actor”); Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972) (noting that

ineffectiveness claims are not cognizable under Section 1983 because “an attorney, whether

retained or appointed, does not act ‘under color of’ state law”). Accordingly, plaintiff fails to

state a claim upon which relief may be granted against defendant Bodegom.

III. Defendants Schmidt, Hoffman, and Ramras

Plaintiff alleges defendants Schmidt and Hoffman, who are prosecuting attorneys, and

defendant Ramras, who was the presiding judge at plaintiff’s criminal trial, violated his rights in

connection with how his criminal charges were prosecuted and how his trial was conducted.

These defendants, however, are entitled to absolute immunity.

Prosecutors are immune from liability pursuant to Section 1983 when functioning in their

official capacity under proper jurisdiction. See Kalina v. Fletcher, 522 U.S. 118, 126 (1997)

(explaining that “acts undertaken by a prosecutor in preparing for the initiation of judicial

proceedings or for trial, and which occur in the course of his role as an advocate for the State, are

entitled to the protection of absolute immunity”); see also Olsen v. Idaho State Bd. of Med., 363

F.3d 916, 922 (9th Cir. 2004) (noting that “[a]bsolute immunity is generally accorded to . . .

prosecutors functioning in their official capacities”); Ashelman v. Pope, 793 F.2d 1072, 1075-77

(9th Cir. 1986) (explaining that prosecutors generally are immune from liability unless acting

without “authority”). Even accepting as true plaintiff’s conclusory assertions that Schmidt and

Hoffman brought false charges against him, the prosecutors acted within their jurisdiction and

authority as Multnomah County prosecutors. Schmidt and Hoffman thus are immune from suit

for their actions taken during the initiation and prosecution of the criminal proceedings against

plaintiff.

Judges are also entitled to absolute immunity from suit for actions taken in the course of

their official duties. See Simmons v. Sacramento Cnty. Super. Ct., 318 F.3d 1156, 1161 (9th Cir.

2003) (explaining that “[a] judge is absolutely immune for judicial acts”); see also Mireles v.

Waco, 502 U.S. 9, 11 (1991) (noting that “judicial immunity is an immunity from suit, not just

from ultimate assessment of damages”). Judge Ramras acted within the scope of his jurisdiction

as a Multnomah County Circuit Court judge when he conducted plaintiff’s criminal trial. See

Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1986) (noting that absolute immunity “fails to

attach to judicial officers only when they act clearly and completely outside the scope of their

jurisdiction” and therefore allegations that a judicial officer acted out of malice or bad faith in

executing their duties do not suffice to sustain a complaint). Judge Ramras thus is immune from

suit for allegedly wrongful actions taken in connection with plaintiff’s criminal proceedings in

the Circuit Court.

IV. Defendants Burns and Hill

Finally, a civil rights case cannot be sustained pursuant to Section 1983 if “a judgment in

favor of the plaintiff would necessarily imply the validity of his conviction.” Heck v. Humphrey,

512 U.S. 477, 486-87 (1994) (explaining that to recover damages for “harm caused by actions

whose unlawfulness would render a conviction or sentence invalid, a [Section] 1983 plaintiff

must prove that the conviction or sentence has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized to make such determination, or

called into question by a federal court’s issuance of a writ of habeas corpus” and “[a] claim for

damages bearing that relationship to a conviction or sentence that has not been so invalidated is

not cognizable under [Section] 1983”). Here, plaintiff alleges claims against defendants Burns

and Hill intertwined with his state criminal proceedings which resulted in his conviction. He

may not, however, do so without first demonstrating that his convictions have been invalidated.

See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (explaining that an individual in state

custody’s “[Section] 1983 action is barred (absent prior invalidation)—no matter the relief

sought (damages or equitable relief), no matter the target of the [individual]’s suit (state conduct

leading to conviction or internal prison proceedings)—if success in that action would necessarily

demonstrate the invalidity of confinement or its duration”). Because a finding in plaintiff’s favor

would necessarily imply the invalidity of his Multnomah County convictions, and because it

does not appear his convictions have been invalidated, the complaint is subject to dismissal.

CONCLUSION

For these reasons, IT IS ORDERED that plaintiff’s Fourth Amended Complaint (ECF

No. 39) is DISMISSED for failure to state a claim upon which relief may be granted under 42

U.S.C. § 1983, as required under 28 U.S.C. § 1915(e)(2). The dismissal is WITH PREJUDICE

as to plaintiffs claims against defendants McLeod, Schmidt, Hoffman, Ramras, and Bodegom.

The dismissal is WITHOUT PREJUDICE as to defendants Burns and Hill.? Because plaintiff

was previously granted numerous opportunities to amend to state a claim upon which relief may

be granted, no further amendments will be allowed.‘

All pending motions are DENIED AS MOOT.

IT IS SO ORDERED.

DATED this _ 28 day of August 2025.

MM. LYVML ZL - fe Ld On (

Adrienne Nelson

United States District Judge

> Under Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995), a claim barred by Heck

may be dismissed sua sponte without prejudice under 28 U.S.C. § 1915.

* Generally, if a pro se complaint is dismissed for failure to state a claim, the court must “freely”

grant leave to amend. Cafasso v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1058 (9th

Cir. 2011) (citation omitted). Nonetheless, courts have the discretion to deny leave to amend in

causes of “repeated failure to cure deficiencies by amendments previously allowed.” Foman □□□

Davis, 371 U.S. 178, 182 (1962); see also Griggs v. Pace American Group, Inc., 170 F.3d 877,

879 (9th Cir. 1999) (“The trial court’s discretion . . . is particularly broad where .. . a plaintiff

previously has been granted leave to amend.”) (citations omitted).

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