Ash v. City of Portland

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KATHRYN ASH, Case No. 3:24-cv-434-SI

Plaintiff, ORDER

v.

CITY OF PORTLAND,

Defendant.

Michael H. Simon, District Judge.

Kathryn Ash, representing herself, originally sued the City of Portland under 42 U.S.C.

§1983, alleging that two members of the Portland Police Bureau (“Bureau”) violated her First,

Fourth, Fifth, and Fourteenth Amendment rights. The Court granted Defendant’s motion to

dismiss on November 14, 2024 (“MTD Order”)1 but granted Plaintiff leave to amend and replead

her claims under the First and Fourteenth Amendment. Plaintiff then filed her first amended

complaint (“FAC”). The Court again granted Defendant’s motion to dismiss on April 11, 2025

(“FAC Order”),2 with leave to amend those claims. Plaintiff filed her second amended complaint

1 Ash v. City of Portland, 2024 WL 4794542 (D. Or. Nov. 14, 2024).

2 ECF 26.

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(“SAC”) on May 2, 2025,3 and Defendant moves to dismiss the SAC with prejudice. For the

reasons stated below, the Court grants Defendant’s motion.

STANDARDS

A motion to dismiss for failure to state a claim may be granted only when there is no

cognizable legal theory to support the claim or when the complaint lacks sufficient factual

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual

allegations, a court must accept as true all well-pleaded material facts alleged in the complaint

and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-

Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629

F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint

“may not simply recite the elements of a cause of action, but must contain sufficient allegations

of underlying facts to give fair notice and to enable the opposing party to defend itself

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Court must draw all

reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon

Off. Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The Court need not, however, credit a

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556

U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the

3 The Court had granted Plaintiff leave to amend in its FAC Order. On May 2, 2025,

Plaintiff filed a motion for leave to file her SAC, then filed her SAC. The Court granted her

motion for leave to file the SAC on May 19, 2025.

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expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation

marks omitted)

A court must liberally construe the filings of a self-represented, or pro se, plaintiff and

afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th

Cir. 2010). Further, “a pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.” Florer v. Congregation Pidyon

Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011) (quoting Erickson v. Pardus, 551 U.S. 89,

94 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, however, every

complaint must contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” This standard “does not require ‘detailed factual allegations,’” but does

demand “more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions’

or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting

Twombly, 550 U.S. at 555).

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DISCUSSION4

A. Official Policy

In its MTD Order, the Court explained that Plaintiff’s description of the policy allegedly

referenced by Sergeant Edwards was too vague to establish the existence of an official policy.5

See Ash, 2024 WL 4794542, at *8. Plaintiff then described the terms of the alleged policy in her

FAC at ¶ 32. In the FAC Order, the Court concluded that it was implausible that the City of

Portland would have an unwritten policy as alleged by Plaintiff, which by its terms in FAC ¶ 32

required Bureau officers to impose “de facto restraining orders” on persons who accurately

report violations of their rights or who “try to tell someone something that they already know.”

FAC Order at 6.

The only addition Plaintiff makes in the SAC to the actual terms of the alleged policy is

the word “may,” making its application permissive instead of mandatory. SAC ¶ 32. Plaintiff

now also describes the policy as “one of the tools in the ‘policing toolkit’ that are available to

Defendant’s police officers.” Id. ¶ 33. But the underlying alleged policy that the Court found

implausible remains the same.

Plaintiff also alleges new facts that relate to the purported policy. She contends that the

“intent” of the policy “was to allow some sort of ‘work’ or something ‘reasonable’ (as

4 The Court provided a full overview of the facts in its previous orders and thus only

discusses in this Order the newly alleged facts in the SAC relevant to resolving the pending

motion to dismiss.

5 In the Complaint, FAC, and now SAC, Plaintiff also identified 22 purported policies.

SAC ¶ 74. In both the MTD Order and FAC Order, the Court explained that this list does not

constitute an official policy under Monell because Plaintiff did not allege that the Bureau

produced or expressly adopted them. See Ash, 2024 WL 4794542, at *9 n.14; FAC Order at 7

n.2. Plaintiff again makes no such allegation in the SAC, so these listed policies are still

insufficient for Monell purposes.

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determined by Defendant) to proceed.” Id. ¶ 36; see also id. ¶ 37. She asserts that the policy is

motivated by the Bureau’s “goal of reducing the cost of policing,” id. ¶ 37, and the “substantial

pressure on officers to ‘close’ service calls.” Id. ¶ 38. And she criticizes the alleged policy

because it “does not take into consideration whether the complaining party was correct or

accurate in reporting violations of his or her property or civil rights.” Id. ¶ 34.

Plaintiff’s nominal change to the terms of the alleged policy in ¶ 32—making it

permissive instead of mandatory—does not cure the defect identified in the FAC Order. The fact

that the alleged policy now uses the word “may” does not make it any more plausible that the

Bureau would have such an official unwritten policy. See FAC Order at 6. Nor do the other new

facts save Plaintiff’s alleged policy. In fact, they make Plaintiff’s alleged policy even less

plausible. Taking as true Plaintiff’s new allegation that the City aims to reduce the cost of

policing, for example, it is implausible that the City would have an official policy allowing

officers to issue restraining orders against persons who report a rights violation, because

enforcing those orders would needlessly raise the cost of policing.6 Because Plaintiff does not

cure the deficiency identified in the FAC Order, she does not plausibly allege the existence of an

official policy.

B. Longstanding Custom or Practice

In the MTD Order, the Court explained that Plaintiff did “not plead any facts suggesting”

that Defendant’s treatment of Plaintiff was “pursuant to a longstanding practice or custom,”

6 It is also implausible that the Bureau would create an official policy that is

simultaneously permissive and mandatory. As alleged in the SAC, Bureau officers may choose

whether to apply the policy but, once applied, they cannot exercise any discretion in enforcing

the restraining orders, even if it is later revealed that the complaining party accurately reported

violations of her rights.

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because each of Plaintiff’s interactions with Defendant stemmed from the single March 2, 2024

incident. See Ash, 2024 WL 4794542, at *8. Plaintiff attempted to cure this defect in the FAC

and, in opposing Defendant’s second motion to dismiss, argued that she had multiple encounters

with the Bureau. See FAC Order at 7 n.3. As the Court explained in the FAC Order, however,

each of these interactions still “concerned a single event” and “not a series of separate incidents

that would establish a longstanding practice or custom.” Id. (emphasis in original).

Plaintiff now alleges in the SAC that “[o]n our information and belief, it is a longstanding

practice, also supported by Portland City Code 3.10.020, for city attorneys to have the authority

to formulate, promulgate[,] and dictate policies to . . . the Portland Police Department, including

instructing both individual officers and the chief of police on its implementation.” SAC ¶ 39.7

She also alleges on information and belief that “Defendant and its City Attorney’s Office have,

historically and publicly, interpreted that the city attorneys have this authority and have acted

accordingly.” Id.

Plaintiff fails to allege sufficient facts supporting this purported “longstanding practice.”

At best, liberally construing her allegations, she states that her incident is one example of the

7 Plaintiff also reproduces the following excerpt from the Portland City Code § 3.10.020

at ¶ 39:

The City Attorney has the following duties: ...

C. Give legal advice and opinions orally and in writing and

prepare legal documents and ordinances for the Mayor, any

Council member, the City Council, the City Administrator, or any

board, bureau, committee, commission, or agency of the City; ...

E. Seek to ensure that City employees comply with legal and

ethical requirements of public employment by providing advice,

direction and opinions; …

F. Seek to prevent legal problems for the City by training,

directing and educating City employees about legal issues[.]

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alleged practice in which her neighbor dictated the conduct of the responding officer. She does

not, however, allege any other incidents, such as other city attorneys who engaged in this

purported longstanding custom or any other person who has been harmed by this unwritten

policy. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (“Liability for improper custom

may not be predicated on isolated or sporadic incidents; it must be founded upon practices of

sufficient duration, frequency and consistency that the conduct has become a traditional method

of carrying out policy.”). Nor does she provide any example of the alleged “public” uses of this

policy.

Plaintiff instead extrapolates from one provision of the Portland City Code to reason that,

because the City Attorney has the “duty” to “give legal advice” to some instrumentalities of the

City, a custom must exist whereby any deputy city attorney may issue real-time legal commands

that any Bureau officer (including the Chief of Police) will immediately follow. This is

insufficient plausibly to allege a longstanding improper custom. See Crockett v. Portland

Police, 2020 WL 5751563, at *4 (D. Or. Sept. 25, 2020) (dismissing Monell custom or practice

claim where the plaintiff alleged that city employees have a “historical pattern practice and

policy” of racial discrimination, but did “not allege[ ] facts describing any other incidents of

discrimination to support his conclusory allegation that a longstanding custom or practice exists”

(quotation marks omitted)). Additionally, Plaintiff’s alleged custom and practice that city

attorneys dictate specific conduct of police officers and the Chief of Police is not plausible.

Further, the Court does not credit the allegations in SAC ¶ 39 because they are conclusory.

Construing Plaintiff’s SAC liberally, Hebbe, 627 F.3d at 342, the real gravamen of ¶ 39 is

that city attorneys have authority to make policy on behalf of the City by issuing commands to

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Bureau officers. That allegation is duplicative of Plaintiff’s claim that city attorneys are final

decisionmakers, which the Court addresses next.

C. Final Decisionmaker

In the MTD Order, the Court explained that Plaintiff did not plead sufficient facts to

establish that Sergeant Edwards was a final decisionmaker for the City, even though he had the

authority to discipline Officer Gervais. Ash, 2024 WL 4794542, at *9. In the FAC, Plaintiff

modestly supplemented her allegations about Sergeant Edwards and alleged in the alternative

that Deputy City Attorney Niedrist was a final decisionmaker because she could direct Officer

Gervais’s actions. The Court explained that the FAC did not allege facts sufficient to establish

that Niedrist was acting in her official capacity when she spoke to Gervais and, even if it did, that

the FAC did not allege facts sufficient to establish that she was a final decisionmaker. FAC

Order at 8-9.8

In the SAC, Plaintiff now alleges that “Deputy City Attorney Niedrist was acting in her

official capacity and/or with the authority of her official position” in her interactions with Officer

Gervais. Id. ¶ 41. That is a conclusory legal allegation that the Court is not required to assume

true. See Iqbal, 556 U.S. at 678; Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th

Cir. 1982) (“Vague and conclusory allegations of official participation in civil rights violations

are not sufficient to withstand a motion to dismiss.”). Plaintiff also now asserts that the “Portland

City Code does not provide for any exceptions to the attorney-client relationship,” such that

8 The Court also explained that the new allegations about Sergeant Edwards were

insufficient to establish that he was a final decisionmaker. FAC Order at 8. Plaintiff does not

allege additional facts in the SAC about Sergeant Edwards’ status as a final decisionmaker.

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every interaction between a city attorney and a Bureau officer is an attorney-client

communication. SAC ¶ 40.9 That is another legal conclusion that the Court need not credit.

Even if Plaintiff had alleged sufficient facts to establish that Deputy City Attorney

Niedrist was giving Officer Gervais legal advice, however, the problem with this theory

identified in the FAC Order remains: “Plaintiff has not sufficiently shown that a deputy city

attorney is a final decisionmaker.” FAC Order at 9. As explained, Portland City Code § 3.10.020

gives the Portland City Attorney’s Office the authority to provide only “advice, direction and

opinions” to City employees. In Pembaur v. City of Cincinnati, by contrast, a county prosecutor

issued a “command” that the Supreme Court explicitly recognized was more binding than “mere

‘legal advice’” under the relevant state law. 475 U.S. 469, 485 (1986). Thus, Plaintiff has not

plausibly alleged that Niedrist was a final decisionmaker.

CONCLUSION

The Court GRANTS Defendant’s motion to dismiss this case with prejudice, ECF 29.

IT IS SO ORDERED.

DATED this 29th day of August, 2025.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

9 In support of that allegation, Plaintiff reproduces the following excerpt of Portland City

Code § 3.10.050 at ¶ 40:

A. The relationship between the Office of City Attorney and

the City is an attorney-client relationship, with the City being

entitled to all benefits thereof.

B. Correspondence between the City Attorney and others in

the City and the opinions and advice provided by the City Attorney

to the City or to any City department, official, or employee are

privileged attorney-client communications.

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