Gibson v. City of Portland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH GIBSON and RUSSEL No. 24-1663

SCHULTZ,

D.C. No. 3:23-

Plaintiffs-Appellants, cv-00833-HZ

v.

OPINION

CITY OF PORTLAND;

MULTNOMAH COUNTY;

MULTNOMAH COUNTY

DISTRICT ATTORNEY’S OFFICE;

CHRISTOPHER TRAYNOR; ROD

UNDERHILL; MIKE SCHMIDT;

BRAD KALBAUGH; and SEAN

HUGHEY,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, District Judge, Presiding

Argued and Submitted April 1, 2025

Portland, Oregon

Filed January 29, 2026

2 GIBSON V. CITY OF PORTLAND

Before: Jay S. Bybee, Kenneth K. Lee, and Danielle J.

Forrest, Circuit Judges.

Opinion by Judge Bybee;

Partial Concurrence and Partial Dissent by Judge Forrest

SUMMARY *

Shotgun Pleading / Immunity

The panel affirmed in part and reversed in part the

district court’s dismissal of an action alleging that

Defendants-Appellees—Multnomah County, the City of

Portland, the Multnomah County District Attorney’s Office

(MCDA), two former district attorneys, two deputy district

attorneys, and a Portland police detective—conspired to

arrest and prosecute Plaintiffs without probable cause to

silence their disfavored right-wing political expression.

The panel held that Plaintiffs’ complaint—which set

forth detailed facts but, in its causes of action, merely alleged

the “defendants” deprived them of various constitutional and

statutory rights—failed to satisfy Federal Rule of Civil

Procedure 8(a)(2)’s requirement of “a short and plain

statement of the claim showing that the pleader is entitled to

relief.” The panel made clear that district courts do not have

to accept shotgun pleadings. Here, among other things, the

claims contained multiple counts, were conclusory and

vague, and asserted multiple claims against multiple

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GIBSON V. CITY OF PORTLAND 3

defendants without identifying who did what. The panel

agreed with the district court that the complaint was

inadequate, and held that the district court properly

dismissed the complaint as a shotgun pleading.

Because the district court reached other issues in the

alternative, and in the interest of justice, the panel reached

Defendants’ claims as to their immunity from suit. The

panel affirmed the district court’s dismissal with prejudice

of all claims against MCDA and the prosecutor Defendants

in their official capacities on the basis of sovereign

immunity. The panel held that, on balance, it was persuaded

that MCDA is a state office, and district attorneys and deputy

district attorneys are state officers, as the Oregon courts have

concluded. The prosecutor Defendants were therefore state

actors shielded by the Eleventh Amendment and could not

be sued in their official capacity for money damages.

The panel affirmed the district court’s dismissal with

prejudice of all claims against District Attorneys Underhill

and Schmidt and Deputy District Attorneys Hughey and

Kalbaugh in their individual capacities on the basis of

absolute prosecutorial immunity to the extent they were

involved in prosecutorial activities. Regardless of the

prosecutors’ motives for charging Plaintiffs, the District

Attorney Defendants were entitled to absolute immunity for

their charging decisions, which are intimately associated

with the judicial phase of the criminal process.

The panel reversed the district court’s dismissal of the

claims against Deputy District Attorney Kalbaugh to the

extent the claims alleged he knowingly presented false

testimony to obtain an arrest warrant. Filing a probable

cause affidavit is not a prosecutorial function warranting

absolute immunity. Kalbaugh was not protected by

4 GIBSON V. CITY OF PORTLAND

qualified immunity because a state actor who presents

knowingly false testimony in support of a probable cause

determination for an arrest warrant, where the warrant would

not have issued without the false statements, violates the

Fourth Amendment, and the act’s unlawfulness was

apparent.

The panel reversed the district court’s dismissal with

prejudice of Plaintiffs’ state law claims against Multnomah

County. On remand, Plaintiffs should be permitted to

replead their claims against Multnomah County, but only to

the extent that they are not based on the acts or omissions of

MCDA or the prosecutor Defendants.

The panel held that Portland Police Detective Traynor

was absolutely immune from liability for any claim arising

from his grand jury testimony.

Accordingly, the panel affirmed in part and reversed in

part the district court’s judgment and remanded with

instructions to permit Plaintiffs to amend their complaint to

conform to Rule 8.

Concurring in part and dissenting in part, Judge Forrest

wrote that the majority erred in sua sponte adopting the

“shotgun pleading” rule. She agreed with the majority on

the following points: (1) the MCDA and the Prosecutor

Defendants have immunity except as related to the

allegations that Deputy District Attorney Brad Kalbaugh

filed a false affidavit when he applied for an arrest warrant;

(2) the claims asserted against Multnomah County, which

were all based on the immune acts of the Prosecutor

Defendants, necessarily failed; and (3) Detective Traynor

has immunity in relation to his grand-jury testimony. But

because the majority remanded several of Plaintiffs’ claims

for repleading under its new shotgun-pleading rule, it did not

GIBSON V. CITY OF PORTLAND 5

address other arguments that Defendants raised in seeking

dismissal of Plaintiffs’ complaint. Judge Forrest would

reach those additional issues.

COUNSEL

James L. Buchal (argued), Murphy & Buchal LLP, Portland,

Oregon; D. Angus Lee, Angus Lee Law Firm PLLC,

Vancouver, Washington; for Plaintiffs-Appellants.

Denis M. Vannier (argued), Senior Deputy City Attorney;

Naomi Sheffield, Counsel; Portland Office of the City

Attorney, Portland, Oregon; Kate E. Morrow (argued),

Assistant Attorney General; Robert A. Koch, Senior

Assistant Attorney General; Benjamin Gutman, Solicitor

General; Ellen F. Rosenblum, Oregon Attorney General;

Oregon Department of Justice, Salem, Oregon; B. Andrew

Jones (argued), Deputy County Attorney; Christopher A.

Gilmore, Assistant County Attorney; Multnomah County

Attorney's Office, Portland, Oregon; for Defendants-

Appellees.

6 GIBSON V. CITY OF PORTLAND

OPINION

BYBEE, Circuit Judge:

Plaintiffs-Appellants, Joseph Gibson and Russell

Schultz, appeal the district court’s dismissal of their

complaint for damages for alleged violations of their civil

rights under 42 U.S.C. §§ 1983, 1985, and 1986, and

Oregon tort law. They allege that Defendants-Appellees—

Multnomah County, the City of Portland, the Multnomah

County District Attorney’s Office (MCDA), two former

district attorneys, two deputy district attorneys, and a

Portland police detective—conspired to arrest and prosecute

them without probable cause to silence their disfavored

right-wing political expression. The district court dismissed

Plaintiffs’ claims—with prejudice against some

Defendants—on procedural and, alternatively, substantive

grounds.

This case presents complex questions of fact and law.

Those questions are made all the more complicated by

Plaintiffs’ shotgun pleading. Although the complaint set

forth detailed facts in 252 numbered paragraphs, in its causes

of action, the complaint merely alleged the “defendants”

deprived them of various constitutional and statutory rights,

leaving to Defendants, the district court, and us to decipher

the details. The complaint fails to satisfy Rule 8(a)(2)’s

requirement of “a short and plain statement of the claim

showing that the pleader is entitled to relief.” We thus agree

with the district court that the complaint was inadequate.

The district court reached other issues in the alternative, and

in the interest of justice, we reach claims by Defendants only

as to their immunity from suit. With respect to these

grounds, we affirm in part and reverse in part the judgment

GIBSON V. CITY OF PORTLAND 7

of the district court and remand with instructions to permit

Plaintiffs to amend their complaint to conform to Rule 8,

especially given the substantial legal issues and troubling

factual allegations raised by Plaintiffs.

I. FACTS AND PROCEEDINGS

The district court dismissed Plaintiffs’ complaint under

Federal Rule of Civil Procedure 12(b)(6). As such, “[w]e

accept as true all well-pleaded allegations of material fact,

and construe them in the light most favorable to the non-

moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d

992, 998 (9th Cir. 2010) (citing Manzarek v. St. Paul Fire &

Marine Ins., 519 F.3d 1025, 1031–32 (9th Cir. 2008)). Our

recitation represents Plaintiffs’ side of the case. Because

“we remand this case to the district court, both sides will

have an opportunity to prove or contest the ‘facts’ alleged in

the complaint and set forth in this opinion.” Lacey v.

Maricopa Cnty., 693 F.3d 896, 907 (9th Cir. 2012) (en banc).

A. The Facts as Alleged

According to the complaint, Gibson is the founder of a

political organization called “Patriot Prayer” that, as relevant

here, organized right-wing demonstrations in Portland,

Oregon. Schultz was a member of Patriot Prayer and

attended its demonstrations. Patriot Prayer’s primary target

was Antifa, a left-wing organization “violently opposed to

the values promoted by [Plaintiffs].” Plaintiffs allege that

the governments of the City of Portland and Multnomah

County, Oregon, sympathized with left-wing activists,

especially Antifa, but were hostile to right-wing entities like

Patriot Prayer. The then-Mayor of Portland, Ted Wheeler,

who was also the commissioner of the Portland Police

Bureau by virtue of his office, shared these prejudices.

8 GIBSON V. CITY OF PORTLAND

Portland’s bias against Plaintiffs ultimately manifested in a

conspiracy to silence them.

In May 2017, Gibson received a federal permit to hold a

political demonstration on federal property in downtown

Portland on June 4, 2017. At the end of May, Wheeler made

a public statement that the City did not want any “alt right

events” and encouraged the federal government to rescind

the permit. Wheeler added that Gibson displayed “bigotry

and hatred.” The federal government rejected the City’s

entreaty, and the demonstration occurred with persistent

violent attempts by Antifa to disrupt it. Despite the violence,

Portland police made few, if any, arrests of Antifa activists.

In February 2019, Portland’s City Council passed a

resolution condemning “a rise of white nationalist, white

supremacist and alt-right hate groups, many of which have

been emboldened by the words and actions of the current

presidential administration,” adding that “the City of

Portland will not tolerate hate in any form.” Gibson claimed

that this resolution was aimed at him and Patriot Prayer.

Gibson, however, denied that Patriot Prayer was motivated

by “bigotry and hatred” and said that the group merely

supports “patriotism, the Christian religion, and advocacy

for limited government.” The same month, Wheeler

implemented training for police officers to identify white

supremacy, and, in an interview, decried Gibson as the

“leader of a group that perpetuates hate speech and

violence.”

On May 1, 2019, Patriot Prayer appeared outside the

Cider Riot bar, Antifa’s unofficial headquarters, and a

confrontation ensued. According to the complaint, Gibson

and Schultz harmed no one and damaged no property, while

Antifa assaulted Patriot Prayer protesters. Plaintiffs

GIBSON V. CITY OF PORTLAND 9

discouraged violence despite Antifa’s aggression. Portland

police took no action to stop the fracas.

Portland police assigned Detective Christopher Traynor

to investigate the incident. From the outset, Traynor never

investigated violence by Antifa despite possessing footage

showing an Antifa activist kicking and spitting on Gibson.

Instead, Defendants conspired to focus investigative efforts

on Patriot Prayer’s role in the incident.

In July 2019, Defendants learned of a planned right-wing

event to be held in Portland on August 17 that would call on

the government to label Antifa a domestic terror

organization. Local government officials swiftly began

colluding to undermine the event. These meetings, which

included Wheeler and the district attorney’s office, sparked

a plan to arrest Plaintiffs to prevent them from joining the

protest.

Brad Kalbaugh, a deputy prosecutor with MCDA,

charged Plaintiffs on August 12, 2019, with the crime of riot

in connection with the May 1 confrontation at the Cedar Riot

bar. 1 Kalbaugh pursued these charges despite viewing

footage showing that Plaintiffs had not engaged in violence,

trespass, or threats. To charge Plaintiffs, Kalbaugh executed

two probable cause affidavits in which he swore: “Detective

Traynor clearly observed . . . individuals [including Gibson

and Schultz] taunting and physically threatening members of

the Antifa group in an effort clearly designed to provoke a

physical altercation”; “Video observed by Detective Traynor

shows Gibson repeatedly challenging members of the Antifa

1

Under Oregon law, “[a] person commits the crime of riot if while

participating with five or more other persons the person engages in

tumultuous and violent conduct and thereby intentionally or recklessly

creates a grave risk of causing public alarm.” Or. Rev. Stat. § 166.015.

10 GIBSON V. CITY OF PORTLAND

group to fight him as he says ‘do something’ and taunts them

from a sidewalk”; and “Video observed by Detective

Traynor shows Gibson physically pushing Heather Clark,

the woman who eventually was knocked unconscious by

[another member of Patriot Prayer].” According to

Plaintiffs, Kalbaugh allegedly knew his statements were

false, and he knew he could not charge Plaintiffs without

them.

On August 15, Kalbaugh presented the case against

Gibson and Schultz to a grand jury where Traynor was the

state’s primary witness. Traynor falsely testified that he had

“no doubt whatsoever” that Plaintiffs engaged in “violent

and tumultuous” acts. And despite possessing complete

footage of the incident, Kalbaugh presented misleading

excerpts. The grand jury indicted Plaintiffs, and Defendants

arrested Gibson and Schultz prior to the August 17 protest.

Wheeler later bragged that the charges against Plaintiffs

“had a chilling effect” on the event.

While the charges were pending, Mike Schmidt was

elected Multnomah County District Attorney, replacing

defendant Rod Underhill. Schmidt promptly changed

prosecutorial policy related to the crime of riot. Starting

August 11, 2020, MCDA presumptively declined to

prosecute riot cases unless the riotous conduct was

accompanied by allegations of more serious crimes. MCDA

applied the policy retroactively to all pending cases except

for that of Plaintiffs.

In September 2020, Gibson and Schultz filed a civil

action in the United States District Court for the District of

Oregon to enjoin Oregon’s prosecution of them. In an order

denying Plaintiffs’ motion for injunctive relief, United States

District Judge Karin J. Immergut wrote that “Plaintiffs make

GIBSON V. CITY OF PORTLAND 11

compelling arguments that their conduct does not rise to the

level of ‘tumultuous and violent’ conduct under O.R.S.

166.015.” Gibson v. Schmidt, 522 F. Supp. 3d 804, 818 (D.

Or. 2021). Judge Immergut added that “Defendants failed to

provide any justification for the non-prosecution policy or

explain why it was not evidence of Defendants’ bias against

Plaintiffs.” Id. at 820. Nevertheless, the district court

dismissed the case based on Younger abstention. Id. at 822

(citing Younger v. Harris, 401 U.S. 37, 46 (1971)).

Plaintiffs then moved to dismiss the criminal

proceedings in state court, but the trial court denied relief

because Kalbaugh explained that the non-prosecution policy

was not applied retroactively to other cases. Denying the

motion, the state court expressed concern about the

sufficiency of the evidence against Gibson and Schultz. The

case proceeded to trial. When the government concluded its

case in chief, the trial court directed a judgment of acquittal.

B. The Proceedings

Following their acquittal on the riot charges, Plaintiffs

brought this action in the District of Oregon. In their

amended complaint, they brought four claims against the

governmental and individual defendants: (1) violation of

§ 1983 based on deprivation of their rights to speech and

assembly, fair judicial proceedings, right to travel, equal

protection, and liberty and property by reason of defamation;

(2) violation of § 1985 for conspiracy to deprive Plaintiffs of

their constitutional rights; (3) violation of § 1986; and

(4) commission of the state torts of malicious prosecution,

false arrest and imprisonment, and negligence. Defendants

moved to dismiss for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6).

12 GIBSON V. CITY OF PORTLAND

In a lengthy opinion, the district court dismissed

Plaintiffs’ action with prejudice as to certain claims that it

believed were immunity-barred and without prejudice as to

others, and it entered judgment in favor of Defendants. The

district court first addressed whether the complaint satisfied

Rule 8(a)(2). It concluded that despite Plaintiffs’ “46-page

FAC,” “Plaintiffs plead multiple claims and do not identify

which specific facts are allocated to which claim and, as

such, they fail to satisfy Rule 8(a)(2).” Notwithstanding that

conclusion, the district court addressed Defendants’

additional challenges to the complaint based on various

defenses of immunity and failure to state a claim and

concluded that Defendants would also be entitled to

judgment on those bases. Plaintiffs timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291, and we

review de novo a district court’s dismissal of a complaint for

failure to state a claim. Telesaurus VPC, LLC v. Power, 623

F.3d 998, 1003 (9th Cir. 2010).

“To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim for relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “We construe all

factual allegations in the light most favorable to the

plaintiffs. Dismissal . . . is appropriate when the complaint

fails to state sufficient facts creating a plausible claim to

relief.” Moore v. Trader Joe’s Co., 4 F.4th 874, 880 (9th Cir.

2021) (citations omitted).

GIBSON V. CITY OF PORTLAND 13

III. DISCUSSION

The district court held for Defendants on three different

bases. First, it held that Plaintiffs’ complaint was

inadequately plead under Rule 8 and must be dismissed.

Second, it held that MCDA, District Attorneys Underhill and

Schmidt, Deputy District Attorneys Hughey and Kalbaugh,

Multnomah County, and Detective Traynor were entitled to

some kind of immunity. Third, it held that Plaintiffs’

remaining claims failed to state claims upon which relief

could be granted. For the reasons we explain below, we will

reach only the first two of these grounds. We will begin with

the immunity claims and then discuss the Rule 8 deficiencies

in the complaint.

A. Immunities from Suit

Governmental parties to a suit may claim not only

immunity from liability, but immunity from the suit itself.

See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Governmental immunity is not concerned only with the

burden of litigation on the public fisc, but also with “the

general costs of subjecting officials to the risks of trial,”

including “distraction of officials from their governmental

duties, inhibition of discretionary action, and deterrence of

able people from public service.” Harlow v. Fitzgerald, 457

U.S. 800, 816 (1982); see Kohn v. State Bar of Cal., 87 F.4th

1021, 1027 (9th Cir. 2023) (en banc). Because governmental

immunities are immunities from suit, and are “conceptually

distinct from the merits of the plaintiff’s claim,” Mitchell,

472 U.S. at 527, immunity questions should be resolved “at

the earliest possible stage in litigation” and “long before

trial,” Hunter v. Bryant, 502 U.S. 224, 227, 228 (1991) (per

curiam). See Anderson v. Creighton, 483 U.S. 635, 646 n.6

(1987) (stating that any discovery required to resolve

14 GIBSON V. CITY OF PORTLAND

questions of qualified immunity “should be tailored

specifically to th[at] question”).

Several of the Defendants in this action have asserted

absolute, qualified, or sovereign immunity. Each of these is

a defense to suit. See Puerto Rico Aqueduct & Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (state

sovereign immunity is immunity from liability and suit);

Mitchell, 472 U.S. at 526 (same for absolute and qualified

immunity). To delay deciding these issues would dilute the

protections from suit afforded by these immunities, so before

considering any other issues in this appeal, we consider the

following claims to immunity: (1) MCDA’s claim to

sovereign immunity under the Eleventh Amendment;

(2) District Attorneys Underhill and Schmidt’s (the “District

Attorney Defendants”) claim to absolute immunity for any

liability arising out of their prosecutorial decisions;

(3) Deputy District Attorneys Hughey and Kalbaugh’s claim

to absolute or qualified immunity; (4) Multnomah County’s

claim to immunity under Oregon law; and (5) Detective

Traynor’s claim to absolute witness immunity.

1. Multnomah County District Attorney’s Office

Plaintiffs sued MCDA, District Attorneys Underhill and

Schmidt in their individual and official capacities, and

Deputy District Attorneys Hughey and Kalbaugh in their

individual and official capacities. Individual capacity civil

rights lawsuits “seek to impose individual liability upon a

government officer for actions taken under color of state

law.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Kentucky

v. Graham, 473 U.S. 159, 166 (1985)). Meanwhile,

“official-capacity suits generally represent only another way

of pleading an action against an entity of which an officer is

an agent. Suits against state officials in their official capacity

GIBSON V. CITY OF PORTLAND 15

therefore should be treated as suits against the State.” Id.

(citing Graham, 473 U.S. at 165–66) (citations omitted).

This subsection concerns only Plaintiffs’ lawsuit against

MCDA and the prosecutor Defendants in their official

capacities; Plaintiffs’ suit against the prosecutor Defendants

in their individual capacities will be addressed in the next

two subsections. Because the suit against the prosecutor

Defendants in their official capacities effectively is a suit

against MCDA, for convenience we will generally refer to

these parties as MCDA.

Plaintiffs assert that the district court erred by finding

that MCDA was entitled to sovereign immunity under the

Eleventh Amendment. We disagree and affirm the dismissal

of all claims against MCDA and Defendants Underhill,

Schmidt, Hughey, and Kalbaugh in their official capacities.

The Eleventh Amendment provides that “[t]he Judicial

power of the United States shall not be construed to extend

to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State,

or by Citizens or Subjects of any Foreign State.” U.S. Const.

amend. XI. The Supreme Court has interpreted the Eleventh

Amendment, absent certain exceptions not applicable here,

to prohibit suits by individuals against states. See generally

Hans v. Louisiana, 134 U.S. 1 (1890) (holding that the

Eleventh Amendment prohibits suits by citizens against their

own states as well as other states). The question in this case

is whether MCDA is a state entity or, as its name suggests,

an arm of the county. If the office is a county entity, it may

not interpose the Eleventh Amendment as a defense to suit.

N. Ins. Co. of N.Y. v. Chatham Cnty., 547 U.S. 189, 193

(2006). Whether the office is “more like a county or city

than it is like an arm of the State” turns on “the nature of the

16 GIBSON V. CITY OF PORTLAND

entity created by state law.” Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274, 280 (1977).

We recently clarified our approach to Eleventh

Amendment questions in our en banc decision in Kohn v.

State Bar of California. 87 F.4th at 1031.2 In that case, we

held that questions of sovereign immunity must be answered

at the entity level rather than the activity level. Id. We

recognized that in an activity-based approach, “an entity’s

immunity from suit may vary depending on the function it

performs.” Id. at 1029. By contrast, an entity-based

approach requires an up-down determination of whether the

entity predominantly exercises state authority: “an entity

either is or is not an arm of the [s]tate,” and “[t]he status of

an entity does not change from one case to the next based on

the nature of the suit, the [s]tate’s financial responsibility in

one case as compared to another, or other variable factors.”

Id. at 1031 (alterations in original) (quoting P.R. Ports Auth.

v. Fed. Mar. Comm’n, 531 F.3d 868, 873 (D.C. Cir. 2008)).

We adopted a three-part inquiry into (1) how state law

characterizes or treats the entity, (2) how the members of the

entity are appointed and removed and whether the state can

supervise the entity’s operations, and (3) the entity’s overall

effect on the state treasury. Id. at 1030. We will consider

each factor.

District Attorneys’ Offices and State Law. The Oregon

Supreme Court has declared that “[d]istrict attorneys in

Oregon are state officers.” State ex rel. Rosenblum v. Nisley,

2

We recognize that the arm-of-the-state doctrine may be further

reformed by the Supreme Court in its upcoming term. See N.J. Transit

Corp. v. Colt, No. 24-1113, 2025 WL 1829162 (U.S. July 3, 2025);

Galette v. N.J. Transit Corp., No. 24-1021, 2025 WL 1829160 (U.S. July

3, 2025).

GIBSON V. CITY OF PORTLAND 17

473 P.3d 46, 50 (Or. 2020) (en banc) (citation omitted).

Although the court’s statement in Rosenblum was clear

enough, the case arose out of “unusual” proceedings in the

Oregon Supreme Court challenging the qualifications of an

attorney to serve as district attorney. Id. at 47–48. The court

offered little analysis in support of its observation, but the

statement has a long provenance. In a prior case, State v.

Clark, the Oregon Supreme Court stated that “[d]istrict

attorneys are state officers applying statewide, not local

law.” 630 P.2d 810, 819 (Or. 1981) (footnote omitted). In

support, the court pointed to a provision in the original

Oregon Constitution that created the office of district

attorney, charged such offices with enforcing state law, and

subjected them to further instructions from the Oregon

Legislative Assembly. Id. at 819 n.15. The provision stated:

There shall be elected by districts, comprised

of one, or more counties, a sufficient number

of prosecuting Attorneys, who shall be the

law officers of the State, and of the counties

within their respective districts, and shall

perform such duties pertaining to the

administration of Law, and general police as

the Legislative Assembly may direct.

Or. Const. art. VII (orig.), § 17. Under this provision:

The district attorney [was] the law officer of

the state, within the limits of his district, with

the powers, in the absence of statutory

regulation, of the attorney general at common

law . . . . [W]hen . . . the district attorney

files a quo warranto information in a

distinctly state action, he has as much the sole

18 GIBSON V. CITY OF PORTLAND

control over it as the attorney general would

have in a like case at common law.

State v. Douglas Cnty. Rd. Co., 10 Or. 198, 201 (1882).

In 1910, Oregon amended Article VII and removed all

references to district attorneys. See Marteeny v. Brown, 517

P.3d 343, 354–57 (Or. Ct. App. 2022) (discussing the history

of Oregon district attorneys). The Oregon courts held that

“[t]he effect of [the amendment of Article VII] was to retain

the provisions of the original Article VII only until changed

by the legislature.” State v. Coleman, 886 P.2d 28, 30 (Or.

Ct. App. 1994) (citation modified); see State v. Farnham,

234 P. 806, 808 (Or. 1925). Subsequent Oregon decisions

have continued to treat district attorneys as state officers.

See Coleman, 886 P.2d at 30 (“the legislature has expressly

designated district attorneys as prosecutors ‘on behalf of the

state’” (quoting Or. Rev. Stat. § 8.660(1))); Rutherford v.

City of Klamath Falls, 526 P.2d 645, 646 (Or. Ct. App. 1974)

(“[A] post-conviction relief suit will be defended by a state

officer, either the Attorney General or the district attorney

depending upon the circumstances. There is no mention of

defense by the city attorney . . . .”), overruled on other

grounds by, Hunter v. State, 735 P.2d 1225 (Or. Ct. App.

1987).

As “the role of Oregon district attorneys is now statutory,

rather than constitutional,” Marteeny, 517 P.3d at 355, we

should also look to Oregon statutes. See generally Or. Rev.

Stat. §§ 8.610–.852 (creating and regulating the office of

district attorneys). Not surprisingly, the statutes authorize

district attorneys to enforce both state and county law.

Oregon law provides that the district attorney is the “public

prosecutor [in the county] and has the authority to appear and

prosecute violations of the charter and ordinances of any city

GIBSON V. CITY OF PORTLAND 19

[over which the county circuit court has jurisdiction].” Id.

§ 8.650. The district attorney shall “advise the county court

and other county officers on all legal questions that may

arise” and defend the county and any county officers and

employees sued for “act[s] and omission[s] in the

performance of official duty.” Id. at § 8.690. On the other

hand, the statutes provide that “[t]he district attorney shall

attend the terms of all courts having jurisdiction of public

offenses within the district attorney’s county,

and . . . conduct, on behalf of the state, all prosecutions for

such offenses therein.” Id. § 8.660(1). Similarly, “[t]he

district attorney shall prosecute for all penalties and

forfeitures to the state that may be incurred in the county of

the district attorney . . . [and] prosecute or defend all actions,

suits and proceedings in the county to which the state is a

party.” Id. § 8.680. For campaign finance purposes, “‘State

office’ means the office of Governor, Secretary of State,

State Treasurer, Attorney General, Commissioner of the

Bureau of Labor and Industries, state Senator, state

Representative, judge or district attorney.” Id.

§ 260.005(23).

Although district attorneys have responsibilities to their

counties, the district attorneys’ statutory duties to the state

strongly suggest that the office is a state office.

Appointment, removal, and supervision. Oregon law

provides that the “district attorney for each county shall be

elected by the electors of the county.” Id. § 8.610. Any

person elected district attorney must file a certificate of

election with the Secretary of State. Id. § 8.620. In the event

that the office becomes vacant, the Governor has the power

to appoint a successor until the next election. Id. § 8.640.

Nothing in Oregon law addresses the removal of district

attorneys specifically, but the Secretary of State lists district

20 GIBSON V. CITY OF PORTLAND

attorneys as a “state public officer” subject to recall by filing

a petition with the state elections division. Sec’y of State of

Or., Elections Div., Recall Manual at 4 (rev. 2024); see Or.

Rev. Stat. §§ 249.002(10), 258.055(3)(a), 260.005(23).

Although the electorate ostensibly has a check on district

attorneys, nothing in Oregon statutory law places district

attorneys under the direction of county commissions. It is

the Attorney General who has “supervisory authority over

district attorneys’ core functions.” Marteeny, 517 P.3d at

355–56. Oregon law provides that

[t]he Attorney General shall consult with,

advise, and direct the district attorneys in all

criminal causes and matters relating to state

affairs in their respective counties. The

Attorney General may require their aid and

assistance in all matters pertaining to the

duties of the Attorney General in their

respective counties and may, in any case

brought to the Supreme Court or the Court of

Appeals from their respective counties,

demand and receive assistance of the district

attorney from whose county such case or

matter is brought.

Or. Rev. Stat. § 180.060(5). The Attorney General has

authority commensurate with that of district attorneys. “The

Attorney General and the Department of Justice shall have

the same powers and prerogatives in each of the several

counties of the state as the district attorneys have in their

respective counties.” Id. § 180.240. The Attorney General

may convene a grand jury and institute prosecutions in any

circuit court in the state and, when so doing, “shall have all

GIBSON V. CITY OF PORTLAND 21

the powers of a district attorney.” Id. § 180.070(2).

Likewise, the Attorney General “shall consult with, advise

and direct the district attorneys in all criminal causes and

matters relating to state affairs in their respective counties.”

Id. § 180.060(5).

If directed by the Governor, the Attorney General may

assume control of a case and exercise the powers of the

district attorney, and in such a situation, the district attorney

may “only exercise such powers and perform such

duties . . . as are required of the district attorney by the

Attorney General.” Id. § 180.080. For example, the

Governor may direct the Attorney General to “take full

charge of any investigation or prosecution of violation of law

in which the circuit court has jurisdiction.” Id. § 180.070(1).

But the Attorney General’s power to assume control over a

specific prosecution at the Governor’s direction “does not

deprive the district attorney[] of any of their authority, or

relieve them from any of their duties to prosecute criminal

violations of law and advise the officers of the counties

composing their districts.” Id. § 180.070(4). In other words,

the Attorney General may act as a special prosecutor within

a district attorney’s district for a specific case, but the

Attorney General does not assume all authority or duties of

the district attorney. See Oregon v. Williams, 336 P.2d 68,

74–75 (Or. 1959).

Although district attorneys are elected county-by-

county, the office is created by state law, and the Governor,

not the county, has the power to fill any temporary vacancy

in the office. While the county government itself may seek

the district attorney’s advice and is to be represented by the

district attorney in litigation, the county does not otherwise

exercise control over the district attorney. More importantly,

the Oregon Attorney General has substantial authority to

22 GIBSON V. CITY OF PORTLAND

supervise district attorneys. This factor ultimately favors a

determination that the office is a state office.

Financial matters. “Although Oregon’s DAs are elected

by and accountable to the people in their respective counties,

they are considered state officers whose salaries are paid by

the State.” Oregon’s 36 District Attorneys, Or. Blue Book,

https://perma.cc/DMM3-D88C. The state sets the salary

schedule for district attorneys. Or. Rev. Stat. §§ 8.852,

240.240(2). A district attorney’s salary can be augmented by

the county, id. § 8.830, and the county is responsible for

district attorneys’ office space and facilities, supplies, and

assistance, id. § 8.850.

The question of what level of Oregon government would

be responsible for any judgment against MCDA is

reasonably clear. For indemnity purposes, “‘state officer,

employee or agent’ includes district attorneys and deputy

district attorneys, special prosecutors and law clerks of the

office of district attorney who act in a prosecutorial capacity,

but does not include any other employee of the office of

district attorney . . . whose salary is paid wholly or in part by

the county.” Id. § 30.285(7). 3 At oral argument, both the

state and the county advised us that the State of Oregon

would be responsible for any judgment against MCDA or the

district attorneys.

3

We note that unlike district attorneys, who are paid by the state, deputy

district attorneys are “paid out of the county funds in the same manner

as county officers are paid.” Or. Rev. Stat. § 8.760. Nevertheless,

Oregon law provides that “[a] deputy district attorney . . . has the same

functions as the district attorney,” id. § 8.780, and the state remains on

the hook to indemnify deputy district attorneys, id. § 30.285(7). We see

no reason to distinguish between district attorneys and their deputies for

Eleventh Amendment purposes.

GIBSON V. CITY OF PORTLAND 23

This factor favors finding that the district attorney’s

office is a state office.

***

On balance, we are persuaded that MCDA is a state

office, and district attorneys and deputy district attorneys are

state officers, as the Oregon courts have concluded. 4 The

prosecutor Defendants are state actors shielded by the

Eleventh Amendment and may not be sued in their official

capacity for money damages. The district court properly

dismissed with prejudice all claims 5 against them and

MCDA.

2. District Attorneys Underhill and Schmidt

Plaintiffs also sued District Attorneys Underhill and

Schmidt in their personal capacities. They claim that the

district court erred in holding that Underhill and Schmidt had

immunity for their prosecutorial decisions. Plaintiffs

4

Plaintiffs argue that, notwithstanding Oregon law, in Williams v. Reed,

604 U.S. 168 (2025), the Supreme Court removed the authority of states

to immunize state actors from federal liability. Plaintiffs have overread

Williams. In that case, the Court held that Alabama courts could not

refuse to hear § 1983 cases seeking injunctive relief in the form of an

order directing a state agency to render a decision on unemployment

claims based on a state administrative exhaustion rule. 604 U.S. at 170–

72. In so holding, the Court reiterated its long-standing rule that “‘a state

law that immunizes government conduct otherwise subject to suit under

§ 1983 is preempted, even where the federal civil rights litigation takes

place in state court.’” Id. at 174 (quoting Felder v. Casey, 487 U.S. 131,

139 (1988)). Williams did not involve the Eleventh Amendment, which

is the basis for MCDA’s claim to sovereign immunity.

5

Absent an express waiver by the state, the Eleventh Amendment bars

both federal and state-law claims against state officers in federal court.

See Alden v. Maine, 527 U.S. 706, 735 (1999); Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 98–99 (1984).

24 GIBSON V. CITY OF PORTLAND

contend that the District Attorney Defendants intentionally

singled them out for prosecution for the incident at Cider

Riot, and that Schmidt knowingly failed to enforce his non-

prosecution policy equally between right-wing and left-wing

protestors. Defendants claim they are entitled to absolute

immunity for these claims because they were prosecutorial

acts. 6

Prosecutors are absolutely immune “for actions

‘intimately associated with the judicial phase of the criminal

process,’ such as the prosecutor’s initiation of a prosecution

and presentation of the state’s case.” Torres v. Goddard, 793

F.3d 1046, 1051 (9th Cir. 2015) (quoting Imbler v.

Pachtman, 424 U.S. 409, 430 (1976)). Absolute immunity

does not protect prosecutors merely because they are

prosecutors; rather, immunity turns on “the nature of the

function performed, not the identity of the actor who

performed it.” Kalina v. Fletcher, 522 U.S. 118, 127 (1997)

(citation omitted). Thus, unlike sovereign immunity, which

is based on the Eleventh Amendment and is entity-based,

prosecutorial immunity is grounded in common-law and

prudential concerns and is activity-based. See id. at 123–24;

Kohn, 87 F.4th at 1029. A prosecutor is immune from suits

6

Although we conclude in the next section that Plaintiffs’ pleading is

deficient, we are able to address this claim to immunity for a few reasons.

First, the complaint’s factual averments demonstrate that Plaintiffs

challenge the District Attorneys’ prosecutorial decisions, including their

purportedly uneven application of the non-prosecution policy. Second,

a copy of the non-prosecution policy is included in the record. Third,

emails between MCDA prosecutors and Plaintiffs’ counsel in their

criminal case related to the retroactive application of the non-prosecution

policy are included in the record. With these pieces of the puzzle, and

cognizant of our duty to decide immunity questions as soon as

practicable, we can analyze Defendants’ assertion of prosecutorial

immunity at this juncture.

GIBSON V. CITY OF PORTLAND 25

stemming from their advocacy but not for administrative or

investigative tasks. Van de Kamp v. Goldstein, 555 U.S. 335,

342 (2009).

Prosecutors have wide discretion to decide who to

charge. See Hovey v. Ayers, 458 F.3d 892, 921 (9th Cir.

2006). “A prosecutor has absolute immunity for the decision

to prosecute . . . [and] the decision not to prosecute.” Roe v.

City & Cnty. of S.F., 109 F.3d 578, 583 (9th Cir. 1997)

(citations omitted). A decision to prosecute or not prosecute

a matter is a complex interplay of law, facts, resources, and

intuition. See Wayte v. United States, 470 U.S. 598, 607

(1985). Although an indictment or information, once filed,

may be challenged in the course of the proceeding, the

prosecutor’s decision whether, when, and what kind of cases

should be charged is not subject to our review prior to the

bringing of the charges. “Public prosecutions, until they

come before the court to which they are returnable, are

within the exclusive discretion of the district attorney . . . .”

The Confiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1868);

see United States v. Batchelder, 442 U.S. 114, 124 (1979)

(“Whether to prosecute and what charge to file or bring

before a grand jury are decisions that generally rest in the

prosecutor’s discretion.”); Bordenkircher v. Hayes, 434 U.S.

357, 364 (1978) (whether and what to charge “rests entirely

in [the prosecutor’s] discretion”).

To be sure, although “the conscious exercise of some

selectivity in enforcement is not in itself a federal

constitutional violation,” selectivity “deliberately based on

an unjustifiable standard such as race, religion, or other

arbitrary classification” would be grounds for dismissing the

criminal action. Oyler v. Boles, 368 U.S. 448, 456 (1962);

see United States v. Armstrong, 517 U.S. 456, 464 (1996); cf.

United States v. Wilson, 123 F.4th 1021, 1027–28 (9th Cir.

26 GIBSON V. CITY OF PORTLAND

2024). But our power to dismiss an unjust criminal action

does not extend to imposing civil penalties against the

prosecutor under § 1983, “insofar as [the prosecutor’s

conduct] is ‘intimately associated with the judicial phase of

the criminal process.’” Burns v. Reed, 500 U.S. 478, 486

(1991) (citation omitted).

In civil cases such as this one, we will not consider a

prosecutor’s motivation when making prosecutorial

decisions; the prosecutor’s motivation is irrelevant to the

immunity inquiry, even if we thought the motivation was

unconstitutional. See McCarthy v. Mayo, 827 F.2d 1310,

1315 (9th Cir. 1987). As we explained in Ashelman v. Pope,

“[i]ntent should play no role in the immunity analysis.

Moreover, allegations that a conspiracy produced a certain

decision should no more pierce the actor’s immunity than

allegations of bad faith, personal interest or outright

malevolence.” 793 F.2d 1072, 1078 (9th Cir. 1986) (en

banc) (citations omitted); see Sample v. City of Woodbury,

836 F.3d 913, 916 (8th Cir. 2016); Bernard v. Cnty. of

Suffolk, 356 F.3d 495, 503–05 (2d Cir. 2004); Kulwicki v.

Dawson, 969 F.2d 1454, 1464 (3d Cir. 1992). Consistent

with this reasoning, we have acknowledged that absolute

“immunity covers the knowing use of false testimony at trial,

the suppression of exculpatory evidence, and malicious

prosecution.” Milstein v. Cooley, 257 F.3d 1004, 1008 (9th

Cir. 2001). We have immunized prosecutors for their

prosecutorial acts even where they supposedly acted

maliciously or intentionally. See McCarthy, 827 F.2d at

1315 (rejecting a plaintiff’s plea to recognize an exception

to absolute prosecutorial immunity based on “the egregious

nature of th[e] case”). We recognize that “[t]his immunity

does leave the genuinely wronged defendant without civil

redress against a prosecutor whose malicious or dishonest

GIBSON V. CITY OF PORTLAND 27

action deprives him of liberty.” Imbler, 424 U.S. at 427.

Nevertheless, “[t]he alternative of qualifying a prosecutor’s

immunity would . . . prevent the vigorous and fearless

performance of the prosecutor’s duty that is essential to the

proper functioning of the criminal justice system.” Id. at

427–28.

Here, Plaintiffs seek to hold the District Attorney

Defendants individually liable for charging some individuals

and declining to charge others based on their political

expression. For better or worse, these are proceedings that

are “intimately associated with the judicial phase of the

criminal process,” Burns, 500 U.S. at 486, and are protected

by absolute prosecutorial immunity, Roe, 109 F.3d at 583.

Regardless of the prosecutors’ motives for charging

Plaintiffs, such as silencing Plaintiffs’ speech or preventing

their participation in the upcoming protest, the District

Attorney Defendants are entitled to absolute immunity for

their charging decisions. Imbler, 424 U.S. at 431.

Plaintiffs point to Schmidt’s adoption of the non-

prosecution policy related to riot and claim that adopting the

policy was a legislative act, not a prosecutorial one, and thus

is not entitled to immunity. This argument is meritless. We

have held that a prosecutor’s adoption of a non-prosecution

policy is a prosecutorial act protected by absolute immunity.

See, e.g., Botello v. Gammick, 413 F.3d 971, 977 (9th Cir.

2005); Roe, 109 F.3d at 583. Decisions whether to prosecute

a single case or a series of cases are still charging decisions,

and charging decisions are prosecutorial, not legislative acts.

See Roe, 109 F.3d at 583. We decline Plaintiffs’ invitation to

ignore our precedent and deem a prosecutorial act a

legislative one merely because it involves a question of

enforcement policy related to a statute. District Attorneys

Underhill and Schmidt are entitled to absolute immunity for

28 GIBSON V. CITY OF PORTLAND

their prosecutorial decisions. Schmidt is entitled to absolute

immunity in connection with promulgating and enforcing his

non-prosecution policy.

3. Deputy District Attorneys Hughey and Kalbaugh

Plaintiffs likewise sued Deputy District Attorneys

Hughey and Kalbaugh in their individual capacities. To the

extent that they were involved in prosecutorial activities,

they are entitled to absolute immunity for the same reasons

described above.

There is one important twist here. Plaintiffs contend that

Kalbaugh presented knowingly false testimony to obtain an

arrest warrant. They argue that the district court erred by

granting Kalbaugh absolute immunity because filing a

probable cause affidavit is not a prosecutorial function

warranting absolute immunity. They also argue that, aside

from his role as prosecutor, he is not entitled to qualified

immunity. We agree and reverse the district court’s dismissal

of this action against Kalbaugh in his individual capacity.

As we have discussed above, prosecutors are absolutely

immune for their conduct in connection with the prosecution

and presentation of the state’s case. “To decide whether

absolute immunity attaches to a particular kind of

prosecutorial activity, [we] must take account of the

‘functional’ considerations . . . .” Van de Kamp, 555 U.S. at

342. Such “functions are those ‘intimately associated with

the judicial phase of the criminal process,’ in which the

prosecutor is acting as ‘an officer of the court.’” Lacey, 693

F.3d at 912 (quoting Van de Kamp, 555 U.S. at 342). They

typically include actions taken to initiate the judicial process,

such as “whether to present a case to a grand jury, whether

to file an information, whether and when to prosecute,

whether to dismiss an indictment against particular

GIBSON V. CITY OF PORTLAND 29

defendants, which witnesses to call, and what other evidence

to present.” Imbler, 424 U.S. at 431 n.33.

The Supreme Court has “held that absolute immunity

does not apply . . . when a prosecutor acts as a complaining

witness in support of a warrant application.” Van de Kamp,

555 U.S. at 343 (citing Kalina, 522 U.S. at 132 (Scalia, J.,

concurring)). A prosecutor is a complaining witness when

he “certif[ies] that the facts alleged within an affidavit are

true.” Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 845

(9th Cir. 2016) (citation modified). Likewise, prosecutors

are not performing a prosecutorial function when they

undertake a role that could be fulfilled by someone other

than a prosecutor—“an act that any competent witness might

have performed.” Kalina, 522 U.S. at 129–30; id. at 130–31

(“Testifying about facts is the function of the witness, not of

the lawyer. . . . Even when the person who makes [a]

constitutionally required ‘Oath or affirmation’ is a lawyer,

the only function that she performs in giving sworn

testimony is that of a witness.”).

Notwithstanding the clarity of the Court’s statements,

Kalbaugh claims that there are extenuating reasons that he is

entitled to absolute immunity or, alternatively, qualified

immunity. We address each in turn.

Absolute Immunity. Kalbaugh posits three reasons he

deserves absolute immunity. First, he merely “recited

evidence that was available to the state and argued that the

state’s position was that the evidence established probable

cause.” Second, he only related “what the detective reported

to him based on what the detective saw and learned while

investigating the case.” Third, he points out that signing

these affidavits is a common practice of prosecutors, and

permitting this litigation would allow disgruntled defendants

30 GIBSON V. CITY OF PORTLAND

to relitigate their criminal cases. None of these arguments is

convincing.

Under Oregon law, someone had to serve as the

complaining witness. Or. Const. art. I, § 9 (“no warrant shall

issue, but on probable cause supported by oath or

affirmation”); see Kalina, 522 U.S. at 129 (describing the

similar Fourth Amendment requirement). But “neither

federal nor state law made it necessary for [Kalbaugh, as the

prosecutor,] to make that certification.” Kalina, 522 U.S. at

129. It was Kalbaugh’s choice to file his own affidavits, it

was his signature on the affidavits, and it was his assertion

of probable cause. See Morley v. Walker, 175 F.3d 756, 758,

760 (9th Cir. 1999).

Kalbaugh did not merely recite the state’s evidence; he

personally attested to the truth of the statements contained in

his affidavits. The affidavits began:

I, Brad Kalbaugh, having been first duly

sworn, depose and say that the accompanying

accusatory instrument is based upon the

information set forth below, which is true as

I verily believe. That I am employed as a

Deputy District Attorney for Multnomah

County, Oregon. That in the course of my

duties, I have learned or have been told the

following concerning the investigation of

criminal acts in Multnomah County, Oregon,

committed by [Plaintiffs].

Although Kalbaugh noted that he was a deputy prosecutor

and that he learned this information in that capacity, he made

multiple “I” statements that suggest that he is the affiant, not

the state. He swore that he, not the state, verily believed the

GIBSON V. CITY OF PORTLAND 31

averments in the affidavits. He attested that he, not the state,

had learned or was told about the facts of the investigation.

At the end of each affidavit, Kalbaugh wrote, “I have

probable cause to believe that [Plaintiff] has committed the

crime(s) of: Count 1 – RIOT. I move the Court on the within

that a warrant be issued for the apprehension of said

defendant.” Finally, the affidavits contained Kalbaugh’s

signature without any qualifier, such as “on behalf of the

state” or “for the Multnomah County District Attorney’s

Office.” Kalbaugh was personally testifying to the

truthfulness of his statements. Admittedly, Kalbaugh likely

would not have filed the affidavit if he was not a prosecutor,

but that just underscores that he had control of the filings in

the case and chose to file the affidavit himself. The fact

remains that “any competent witness” could have made these

statements. See Kalina, 522 U.S. at 129–30.

Likewise, Kalbaugh’s argument that he was only reciting

what Detective Traynor had told him he observed, such that

Kalbaugh was not the complaining witness himself, is

unpersuasive. Kalbaugh could have asked Traynor to be the

complaining witness. Kalbaugh did not, and he signed the

affidavit. Although he conceded in the affidavit that he was

not an eyewitness, he essentially vouched for Traynor, who

had not attested to the facts in the affidavit. And more

importantly, Kalbaugh is now asking the court to rely on his

vouching for Traynor.

Lastly, it is no answer that prosecutors must be immune

because they routinely file affidavits like this one. The

frequency with which prosecutors take an action does not

transform that action into a prosecutorial function.

Prosecutors frequently drive to court; surely, a prosecutor

could not claim immunity from a tort suit if he hit a

pedestrian on his way there. Otherwise, there would be no

32 GIBSON V. CITY OF PORTLAND

need for the functional approach to absolute immunity, as

any frequent action of a prosecutor would warrant immunity.

We have rejected such a categorical approach. Torres, 793

F.3d at 1051. Immunity shields prosecutors engaged in

prosecutorial conduct, absolutely, not prosecutors,

absolutely. Id. The district court erred by granting Kalbaugh

absolute immunity.

Qualified immunity. Although Kalbaugh is not entitled

to absolute immunity as a prosecutor, as the complaining

witness, he may be entitled to qualified immunity in the

same manner as other state witnesses. A state actor is

entitled to qualified immunity if his “conduct did not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow, 457 U.S.

at 818; Longoria v. Pinal Cnty., 873 F.3d 699, 704 (9th Cir.

2017). This is a two-step inquiry, but we may decide the

questions in any order and need not reach the second

question if our answer to the first is dispositive. Pearson v.

Callahan, 555 U.S. 223, 236 (2009). We first ask whether

the conduct violated a constitutional or statutory right. If so,

we then ask whether that right was clearly established. See

id. at 232. If there was no violation of a constitutional right,

the cause of action fails on the merits; if, however, there was

a violation of a constitutional right, but the right was not

clearly established, the defendant is immune from suit. See

id. at 231.

When ascertaining if a right was clearly established, the

Supreme Court has cautioned us not to view the right at a

high level of generality. See Mullenix v. Luna, 577 U.S. 7,

12 (2015) (citation omitted). A right is clearly established

where “existing precedent . . . placed the statutory or

constitutional question beyond debate.” Ashcroft v. Al-Kidd,

563 U.S. 731, 741 (2011). “[T]he burden is on Plaintiffs to

GIBSON V. CITY OF PORTLAND 33

show that ‘the right’s contours were sufficiently definite that

any reasonable official in the defendant’s shoes would have

understood that he was violating it.’” Napouk v. Las Vegas

Metro. Police Dep’t, 123 F.4th 906, 922 (9th Cir. 2024)

(citation omitted) (quoting Kisela v. Hughes, 584 U.S. 100,

105 (2018)).

In this case, Plaintiffs alleged that Kalbaugh knowingly

presented false statements to secure an arrest warrant, and

that he knew that a judge would not have issued the warrant

absent the false statements. We have held since at least 1991

that a state actor who presents knowingly false testimony in

support of a probable cause determination for an arrest

warrant, where the warrant would not have issued without

the false statements, violates the Fourth Amendment. See,

e.g., Mendocino Env’t Ctr. v. Mendocino Cnty., 192 F.3d

1283, 1295 (9th Cir. 1999); Hervey v. Estes, 65 F.3d 784, 788

(9th Cir. 1995) (citations omitted); Branch v. Tunnell, 937

F.2d 1382, 1387 (9th Cir. 1991), overruled on other grounds

by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1127

(9th Cir. 2002). No reasonable prosecutor in Kalbaugh’s

shoes would have believed that his alleged conduct did not

violate the Fourth Amendment; the act’s “unlawfulness

[was] apparent.” Anderson, 483 U.S. at 640 (citations

omitted). Because at this stage of the proceedings we must

accept the facts pleaded in the complaint, Plaintiffs have

alleged sufficient facts to show Kalbaugh is not protected by

qualified immunity.

* * *

The recourse for improper prosecutorial conduct may lie

in sanctions, in dismissal of criminal cases, in professional

disciplinary proceedings, or, where the position is an elected

one, in the voting booth, but not in a § 1983 lawsuit. See

34 GIBSON V. CITY OF PORTLAND

Imbler, 424 U.S. at 428–29. As the Supreme Court has

acknowledged, the interest in having independent

prosecutors unafraid of lawsuits for their charging decisions

necessitates the “strong medicine” of absolute immunity.

Forrester v. White, 484 U.S. 219, 230 (1988) (citation

omitted); see Burns, 500 U.S. at 485–86; see also Milstein,

257 F.3d at 1007 (citations omitted) (describing the policy

justifications for absolute prosecutorial immunity). That

strong medicine is called for here, and the district court

properly dismissed with prejudice all claims 7 against the

District Attorney Defendants and Deputy District Attorney

Hughey, in their individual capacities, based on their

charging decisions and enforcement of their non-prosecution

policy. It erred, however, when it extended that protection

to Deputy Assistant District Attorney Kalbaugh for filing his

affidavits, actions that were not inextricably tied to his

responsibilities as a prosecutor.

4. Multnomah County

The district court ruled that Multnomah County is

immune from Plaintiffs’ Oregon-law claims for malicious

prosecution, false arrest and imprisonment, and negligence.

Specifically, the district court concluded that because the

7

Under Oregon law, prosecutors are similarly entitled to absolute

immunity “for acts performed in initiating prosecutions,” including

“decision[s] as to ‘when, how, and against whom to proceed.’” Heusel

v. Multnomah Cnty. Dist. Att’y’s Off., 989 P.2d 465, 467 (1999) (quoting

Watts v. Gerking, 111 Or. 641, 657 (1924)); see also Tennyson v.

Children’s Servs. Div., 308 Or. 80, 86 (1989) (explaining that state

prosecutors performing “functions that are ‘integral parts of the judicial

process,’” including “initiating criminal prosecutions, . . . are entitled to

absolute immunity”). We thus agree with the district court’s conclusion

that District Attorney Defendants and Deputy District Attorney Hughey

are entitled to absolute immunity from Plaintiffs’ state-law claims.

GIBSON V. CITY OF PORTLAND 35

prosecutor Defendants are entitled to absolute immunity

from Plaintiffs’ state-law claims, Oregon law shields

Multnomah County from liability for their conduct. See Or.

Rev. Stat. § 30.265(5) (“Every public body is immune from

liability for any claim for injury to or death of any person or

injury to property resulting from an act or omission of an

officer, employee or agent of a public body when such

officer, employee or agent is immune from liability.”).

Because we have already concluded that MCDA and

Multnomah County are separate legal entities, and that the

district attorneys and deputy district attorneys are state

employees, § 30.265(5) has no application here. 8 On

remand, Plaintiffs should be permitted to replead their

claims against Multnomah County, but only to the extent that

they are not based on the acts or omissions of MCDA or the

prosecutor Defendants.

5. Detective Traynor

The district court ruled that Detective Traynor is

absolutely immune from liability for any claim arising from

his grand jury testimony. We agree.

Under both state and federal law, “[w]itnesses, including

police officers, are absolutely immune from liability for

testimony . . . before a grand jury.” Lisker v. City of Los

8

We are aware that in Jackson v. Multnomah Cnty., 709 P.2d 1153 (Or.

Ct. App. 1985), Multnomah County “d[id] not dispute that it is

responsible for the acts of [a] deputy district attorney.” Id. at 1155 n.4.

The question was purely hypothetical, however, because the deputy

district attorney in that case was immune from liability, so the County

would have been immune as well under § 30.265(5). Id. Moreover, the

County’s apparent concession in Jackson is inconsistent with the later-

enacted § 30.285(7), which imposes state liability for the acts of “deputy

district attorneys” but not of other “employee[s] of the office of district

attorney . . . whose salary is paid wholly or in part by the county.”

36 GIBSON V. CITY OF PORTLAND

Angeles, 780 F.3d 1237, 1241 (9th Cir. 2015) (citing Rehberg

v. Paulk, 566 U.S. 356, 375 (2012)); see Tennyson, 308 Or.

at 86. That immunity extends to conspiracies to provide

false testimony and to any other “preparatory activities” that

are “inextricably tied” to the witness’s testimony. Lisker,

780 F.3d at 1241. It does not, however, extend to “‘non-

testimonial’ acts, such as ‘tampering with documentary or

physical evidence or preventing witnesses from coming

forward.” Id. at 1242 (citation omitted).

Here, many of Plaintiffs’ allegations against Detective

Traynor arise directly from or are inextricably intertwined

with his grand jury testimony. The district court correctly

determined that Traynor is absolutely immune from claims

arising from that conduct. The district court also properly

granted Traynor immunity from Plaintiffs’ claims only to the

extent they arise out of his grand jury testimony; on remand,

Plaintiffs may replead their claims to allege other conduct

for which Traynor might not be immune.

B. Rule 8

Plaintiffs challenge the district court’s conclusion that

the complaint failed to conform to Rule 8(a)(2), 9 which

9

The dissent’s party-presentation argument that the record has not

“invite[d] us to consider the shotgun-pleading rule” is perplexing.

Dissenting Op. at 59. At least one Defendant moved to dismiss the

complaint specifically on the ground that it “fails to comply with Federal

Rule of Civil Procedure 8(a)(2)”; the district court separately addressed

that argument, agreeing that the complaint constituted a “[s]hotgun

pleading” and noting that such pleadings are subject to dismissal;

Plaintiffs dedicated separate sections of their Opening and Reply Brief

to challenging the district court’s Rule 8(a)(2) dismissal; and MCDA

likewise dedicated a separate section of its Answering Brief to arguing

that the complaint was properly dismissed under Rule 8(a)(2). That

some of the parties may not have expressly used the term “shotgun

GIBSON V. CITY OF PORTLAND 37

mandates that “[a] pleading that states a claim for relief must

contain . . . a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

The district court held that the complaint “contain[ed]

several broadly pled facts in which Plaintiffs assert[ed]

allegations against ‘Defendants’ without specifying which

defendants engaged in the act. In addition, Plaintiffs’ claims

under § 1985, § 1986, and state law incorporate all factual

allegations of the 46-page [complaint] and lump all

Defendants together.” Noting that a complaint that engages

in shotgun pleading violates the Federal Rules and is subject

to dismissal, the district court concluded: “Plaintiffs plead

multiple claims and do not identify which specific facts are

allocated to which claim and, as such, they fail to satisfy

Rule 8(a)(2).”

On appeal, Plaintiffs argue that they “set forth an

extremely detailed chronological narrative identifying

specific misconduct of each Defendant.” Furthermore,

Plaintiffs contend that if they had repeated all of this

information in each of their four claims for relief, they would

have violated Rule 8(a)’s imperative against repetition. But

Plaintiffs misread Rule 8’s requirements, and the district

court properly dismissed the complaint as a shotgun

pleading.

1. Shotgun Pleadings

We are to construe the Federal Rules of Civil Procedure

“to secure the just, speedy, and inexpensive determination of

every action.” Fed. R. Civ. P. 1. Rule 8 requires every

“pleading that states a claim for relief [to] contain” three

pleading” does not prevent us from addressing the substance of the

district court’s ruling and the parties’ arguments.

38 GIBSON V. CITY OF PORTLAND

things: “a short and plain statement of the grounds for the

court’s jurisdiction,” “a short and plain statement of the

claim showing that the pleader is entitled to relief,” and “a

demand for the relief sought.” Fed. R. Civ. P. 8(a)(1)–(3).

The Supreme Court’s decision in Ashcroft v. Iqbal supplies

the guidelines for applying Rule 8:

The pleading standard Rule 8 announces

does not require detailed factual allegations,

but it demands more than an unadorned,

the-defendant-unlawfully-harmed-me

accusation. A pleading that offers labels and

conclusions or a formulaic recitation of the

elements of a cause of action will not do. Nor

does a complaint suffice if it tenders naked

assertions devoid of further factual

enhancement.

556 U.S. at 678 (citation modified) (quoting Twombly, 550

U.S. at 555, 557). Iqbal requires attention to the pleading of

both facts and law. A complaint may be deficient because it

does not provide sufficient facts to support a cause of action;

on the other hand, even “well-pleaded facts” are not

sufficient if they are accompanied by only “[t]hreadbare

recitals of the elements of a cause of action, supported by

mere conclusory statements.” Id. The goal here is to provide

“sufficient notice” so the parties and the court can “focus

litigation on the merits of a claim.” Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 514 (2002); see Erickson v. Pardus, 551

U.S. 89, 93–94 (2007) (per curiam) (applying Rule 8); Starr

v. Baca, 652 F.3d 1202, 1212–16 (9th Cir. 2011) (discussing

Iqbal and applying Rule 8).

GIBSON V. CITY OF PORTLAND 39

With these principles in mind, we are prepared to discuss

the problem of shotgun pleadings. A shotgun pleading is one

where “a party indiscriminately incorporates assertions from

one count to another, for example, by incorporating all facts

or defenses from all previous counts into each successive

count . . . prevent[ing] the opposing party from reasonably

being able to prepare a response or simply mak[ing] the

burden of doing so more difficult.” 5A Wright & Miller’s

Federal Practice and Procedure § 1326 (4th ed. 2024).

Incorporation by reference is permitted by Rule 10(b) and

(c), but when it is used indiscriminately, it becomes a

shortcut by counsel that violates Rule 8. There are four main

types of shotgun pleadings:

(1) a complaint containing multiple counts

where each count adopts the allegations of all

preceding counts, causing each successive

count to be a combination of the entire

complaint; (2) a complaint that is replete with

conclusory, vague, and immaterial facts not

obviously connected to any particular cause

of action; (3) a complaint that fails to separate

into a different count each cause of action or

claim for relief; and (4) a complaint that

asserts multiple claims against multiple

defendants without specifying which of the

defendants are responsible for which acts or

omissions, or which of the defendants the

claim is brought against.

35A C.J.S. Fed. Civ. Proc. § 310 (2025); see also 61A Am.

Jur. 2d Pleading § 159 (2025) (discussing the “four rough

types or categories of shotgun pleadings”). As we noted

above, the problem with shotgun pleadings is that they make

40 GIBSON V. CITY OF PORTLAND

it difficult, if not impossible, for the opposing party to

formulate a response. See Weiland v. Palm Beach Cnty.

Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir. 2015) (“The

unifying characteristic of all types of shotgun pleadings is

that they fail . . . to give the defendants adequate notice of

the claims against them and the grounds upon which each

claim rests.”). But the defendant is not the only interested

party affected. “[Shotgun pleadings] waste scarce judicial

resources, inexorably broaden the scope of discovery, wreak

havoc on appellate court dockets, and undermine the public’s

respect for the courts.” Vibe Micro, Inc. v. Shabanets, 878

F.3d 1291, 1295 (11th Cir. 2018) (citation modified)

(quoting Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d

955, 981–83 (11th Cir. 2008), abrogated on other grounds

by, Twombly, 550 U.S. at 544).

We have discussed the relationship between shotgun

pleadings and Rule 8 briefly in one published opinion. In

Destfino v. Reiswig, 630 F.3d 952 (9th Cir. 2011), we

affirmed a district court’s dismissal with prejudice of the

plaintiffs’ second amended complaint as a shotgun pleading.

Id. at 958–59. The complaint alleged fraud, which fell under

the ambit of Rule 9(b)’s demand of particularity in pleading.

Id.; see Fed. R. Civ. P. 9(b). However, we noted that the

complaint also failed under Rule 8(a)(2)’s “short and plain

statement” requirement. Destfino, 630 F.3d at 959. We

found that “the district court gave plaintiffs several chances

to amend, with detailed instructions as to what they needed

to do to fix the problems with their complaint. Plaintiffs

failed to comply . . . and it was therefore proper for the court

to dismiss their entire complaint without further leave to

amend.” Id.

Several of our sister circuits have either expressly

adopted, acknowledged, or applied some variation of a

GIBSON V. CITY OF PORTLAND 41

shotgun pleading rule. For example, in Lee v. Ohio

Education Ass’n, 951 F.3d 386 (6th Cir. 2020), the plaintiff

placed “all seven of her state-law causes of action . . . within

a single sentence.” Id. at 392. The Sixth Circuit found that

this practice violated both Rule 8(b)(2) by “fail[ing] to

connect specific facts or events with the various causes of

action she asserted” and Rule 10(b) by failing to separate her

causes of action into separate counts. Id. at 392–93 (internal

quotation marks and citation omitted). And as the Eleventh

Circuit has explained:

[W]hen faced with a complaint [that lumps

multiple claims together in one count, and] in

which the counts incorporate by reference all

previous allegations and counts, the district

court must cull through the allegations,

identify the claims, and, as to each claim

identified, select the allegations that appear to

be germane to the claim. This task can be

avoided if the defendant moves the court for

a more definite statement or if the court,

acting on its own initiative, orders a

repleader.

Ledford v. Peeples, 605 F.3d 871, 892 (11th Cir. 2010),

vacated on other grounds, 657 F.3d 1222 (11th Cir. 2011);

see Fed. R. Civ. P. 12(e) (authorizing motions for a more

definite statement). The Eleventh Circuit has been the most

vocal of the circuits. See Vibe Micro, 878 F.3d at 1295

(observing that “[c]ourts in the Eleventh Circuit have little

tolerance for shotgun pleadings”). Relying on a district

court’s “inherent authority to control its docket and ensure

the prompt resolution of lawsuits,” the Eleventh Circuit

permits district courts to dismiss shotgun pleadings, subject

42 GIBSON V. CITY OF PORTLAND

to an abuse of discretion standard of review. Id. (citation

omitted). Other circuits have addressed the problem as well.

See, e.g., Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939,

946 (7th Cir. 2013) (stating that a “kitchen sink” pleading

violates the Federal Rules); U.S. ex rel. Est. of Cunningham

v. Millenium Labs. of Cal., Inc., 713 F.3d 662, 664 n.2 (1st

Cir. 2013) (“Ordinarily, the issue of stating multiple claims

in a single count is dealt with as a ‘shotgun’ pleading, or a

pleading that fails to identify claims with sufficient clarity to

enable a defendant to frame a responsive pleading.”); Glenn

v. First Nat’l Bank in Grand Junction, 868 F.2d 368, 371

(10th Cir. 1989) (“The law recognizes a significant

difference between notice pleading and ‘shotgun’

pleading.”); see also Decker v. Massey-Ferguson, Ltd., 681

F.2d 111, 114–15 (2d Cir. 1982) (discussing a shotgun

pleading’s deficiencies, albeit in the Rule 9 context).

This case provides us with an opportunity to make clear

that district courts do not have to accept such shotgun

pleadings. It is not the job of the district courts to make sense

of the pleading, to supply facts to support the claim, or to

imagine the claims that might fit the facts. Whether the

parties have raised the issue or not, the district court has

“inherent authority to control its docket and ensure the

prompt resolution of lawsuits, which in some circumstances

includes the power to dismiss a complaint for failure to

comply with Rule 8(a)(2) and Rule 10(b).” Weiland, 792

F.3d at 1320; see Dietz v. Bouldin, 579 U.S. 40, 47 (2016)

(“[D]istrict courts have the inherent authority to manage

their dockets and courtrooms with a view toward the

efficient and expedient resolution of cases.”); Spurlock v.

F.B.I., 69 F.3d 1010, 1016 (9th Cir. 1995) (stating that a

district court has “inherent power over the administration of

GIBSON V. CITY OF PORTLAND 43

its business [and] inherent authority to . . . enforce rules for

the management of litigation” (citations omitted)).

We recognize that Rule 8 supplies a standard, not a rule.

“Shotgun pleading” describes a class of defects in

complaints; it does not supply a brightline rule. It will

require judgment on the part of the district courts to

determine those complaints that fail to provide the opposing

parties and the district court with sufficient notice of the

claims and their basis. But when district courts identify

shotgun pleadings, they should not hesitate to afford such

parties one last opportunity to make themselves understood.

In other words, we clarify today that Rule 8 provides district

courts with an additional tool that they may use to dismiss

shotgun pleadings when identified—not a rule necessarily

requiring district courts to do so, however prudent it may be.

The standard we recognize in this case is a salutary one.

First, permitting parties to file pleadings that do not tie

factual averments against specific parties to individual

causes of action infringes Rule 8. Shotgun pleading

undermines a fundamental purpose of Rule 8, which is to

provide defendants with adequate notice of the plaintiff’s

claims, including the facts and the legal basis for relief. See

Starr, 652 F.3d at 1212. And accepting such a pleading is

inconsistent with Rule 1’s dictate that the Federal Rules

should “promote the just, speedy, and inexpensive

determination of every action and proceeding.” Fed. R. Civ.

P. 1. It is not just, speedy, or inexpensive to force opposing

parties and courts to separate the wheat from the chaff in a

complaint. Second, this is a doctrine our district courts are

already regularly using, often while citing out-of-circuit

44 GIBSON V. CITY OF PORTLAND

precedent. 10 We have a prudential obligation to clarify to

district courts that in an appropriate case, like this one, they

can dismiss shotgun pleadings. Third, from a judicial policy

perspective, enforcing a bar against shotgun pleading, but

allowing the party to re-plead the complaint, not only

provides better notice to opposing parties of the claims

against them, but prevents the needless expenditure of finite

judicial resources. The dissent argues that Rule 12(e)’s

mechanism permitting a party to seek a more definite

statement is a sufficient prophylaxis to guard against shotgun

pleadings. Dissenting Op. at 62–65. We recognize that Rule

12(e) is an important tool for a party to seek clarification.

But the district courts should not be forced to wade through

a morass of allegations, trying to determine how the facts

might relate to the causes of action, simply because a party

failed to bring a Rule 12(e) motion. See, e.g., Vinole v.

Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th Cir.

2009) (acknowledging judicial efficiency concerns for class

certification); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th

Cir. 1998) (same for habeas corpus); Planned Parenthood of

10

We have surveyed published and unpublished opinions in our circuit

in which district courts have either required a party to replead a shotgun

complaint or dismissed a party for failure to correct a shotgun pleading.

Every district in our circuit except the District of Guam, which has not

had occasion to address the question, has recognized that complaints may

be dismissed if they amount to so-called “shotgun pleadings.” See, e.g.,

John Ketch LLC v. San Juan Cnty., 759 F. Supp. 3d 1121, 1131–35 (W.D.

Wash. 2024); Apothio, LLC v. Kern Cnty., 599 F. Supp. 3d 983, 1000

(E.D. Cal. 2022); A.B. v. Hilton Worldwide Holdings Inc., 484 F. Supp.

3d 921, 943–44 (D. Or. 2020); SEC v. Bardman, 216 F. Supp. 3d 1041,

1051–52 (N.D. Cal. 2016); Kim v. Quichocho, 708 F. Supp. 2d 1079,

1089–91 (N. Mar. I. 2010); Mason v. Cnty. of Orange, 251 F.R.D. 562,

563 (C.D. Cal. 2008); In re Metro. Sec. Litig., 532 F. Supp. 2d 1260, 1279

(E.D. Wash. 2007).

GIBSON V. CITY OF PORTLAND 45

S. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (same for

supplemental pleading).

2. Deficiencies in the Complaint

With that background in mind, we turn to the complaint

before us to explain why Plaintiffs’ complaint is

deficient. Let us begin with an important observation: the

inadequacies are not in the facts Plaintiffs have set forth.

Whatever else may be said of Plaintiffs’ allegations,

Plaintiffs pleaded detailed facts in 252 numbered

paragraphs. We cannot fault Plaintiffs for deciding to err on

the side of greater detail in the facts. This is a complicated

case involving what Plaintiffs believe is a months-long

conspiracy among a variety of government actors to deprive

them of their civil rights. See Otto Candies, LLC v. Citigroup

Inc., 137 F.4th 1158, 1199–1200 (11th Cir. 2025) (“The

factual allegations naturally relate to multiple counts and

‘lengthy descriptions’ are required to flesh out the plaintiffs’

claims. Put differently, though ‘the facts are voluminous,

overall they are not conclusory, vague, and immaterial.”

(citations omitted)).

The problem arises once we get to Plaintiffs’ four claims

for relief. All details evaporate when they had to link their

facts to their causes of action. We review each claim for

relief against Rule 8 here to explain why Plaintiffs’

complaint is not adequate.

First Claim for Relief: § 1983. The first claim is

Plaintiffs’ most important claim. It is also their most

unsatisfactory. It contains two main paragraphs, each with

46 GIBSON V. CITY OF PORTLAND

subparagraphs. After Paragraph 253 incorporates

Paragraphs 1–252, Paragraph 254 claims as follows:

Plaintiffs were deprived of rights guaranteed

to them under the U.S. Constitution by

defendants, acting under color of state law, in

one or more of the following particulars:

(a) Plaintiffs were deprived of their rights

of free speech and to peaceably

assemble under the First Amendment,

free from governmental retaliation;

(b) Plaintiffs were deprived of their rights

to fair judicial proceedings under the

Fifth Amendment;

(c) Plaintiffs were deprived of their right to

travel to the City of Portland, protected

under the Fifth Amendment and/or the

Privileges and [sic] Immunities Clause

of the Fourteenth Amendment;

(d) Plaintiffs were deprived of their right to

equal protection of the laws under the

Fourteenth Amendment; and

(e) Plaintiffs were deprived of their liberty

and property by reason of defamation

by defendants.

This is a classic shotgun pleading. Indeed, it violates three

of the four categories of shotgun pleadings we previously

listed: It contains multiple counts, incorporating allegations

for all preceding counts; it is conclusory and vague; and it

asserts multiple claims against multiple defendants without

GIBSON V. CITY OF PORTLAND 47

identifying who did what. See 35A C.J.S. Fed. Civ. Proc.

§ 310. We will go through each category.

First, the claim has multiple counts. It alleges violations

of the First, Fifth, and Fourteenth Amendments. With

respect to the Fourteenth Amendment, it alleges separate

violations of the Privileges or Immunities, Equal Protection,

and Due Process Clauses. Even though all of the subclaims

are constitutional in nature, they are disparate claims:

retaliation for the exercise of speech and assembly,

deprivation of fair judicial proceedings, deprivation of the

right to travel, deprivation of equal protection, and

deprivation of due process rights through defamation. These

five separate causes of action are bundled into a single claim,

and each of which is, apparently, supported by all of the facts

alleged in Paragraphs 1 through 252. Rule 8(d)(2) permits a

party to “set out 2 or more statements of a claim . . . either in

a single count . . . or in separate ones,” but that does not

relieve the party of the obligation to set forth “a short and

plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Second, the claim is conclusory and vague. In Iqbal, the

Court warned that “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements,

do not suffice.” Iqbal, 556 U.S. at 678. We do not have even

“threadbare recitals of the elements of a cause of action”

here. Id. Are we really to believe that, whatever the facts,

Plaintiffs’ claim to a violation of their right to travel in

Paragraph 254(c) has the same factual and legal basis as their

claim to defamation in Paragraph 254(e)? That being

deprived of a right to a fair judicial proceeding in Paragraph

254(b) has the same factual and legal basis as a deprivation

of the right to free speech and assembly in Paragraph 254(a)?

If so, the connection has eluded us.

48 GIBSON V. CITY OF PORTLAND

Third, the claim has both multiple claims and multiple

defendants. The Defendants here include three

governmental entities, four prosecutors, and one police

detective. Did all of the Defendants violate Plaintiffs’

constitutional rights with respect to each of the five

subclaims? To take one example, did MCDA defame

Plaintiffs? Multnomah County? The City of Portland? If

the City defamed them, is that allegation based on Mayor

Wheeler’s statements to the press or on the City Council’s

resolution, or both? What statement did Detective Traynor

make that could satisfy the elements of a defamation claim?

These criticisms can be multiplied across Plaintiffs’ claims.

When Plaintiffs couch their allegations in passive voice

(“Plaintiffs were deprived . . .”), they have abandoned their

duty to identify who is responsible and have invited

Defendants, the district court, and this court to fill in the

blanks. Moreover, because the complaint refers to all of the

facts, it fails to identify the specific actions that amounted to

these violations. None of this is clear from the complaint.

These allegations require repleading.

Paragraph 255, still within the First Claim for Relief,

offers more detail than Paragraph 254 but raises a whole new

set of questions:

The foregoing facts establish one or more

customs or policies which inflicted the

injuries upon plaintiffs, including but not

limited to:

(a) On the part of defendant City of

Portland and Traynor, to defame plaintiffs,

abuse police powers to insulate plaintiffs’

political opponents from liability for

criminal misconduct, and abuse law

GIBSON V. CITY OF PORTLAND 49

enforcement authority to falsely accuse

plaintiffs of criminal conduct.

(b) On the part of defendants Multnomah

County, MCDA, Underhill, Schmidt,

Kalbaugh and Hughey to defame plaintiffs,

selectively prosecute plaintiffs, and abuse

prosecutorial discretion to insulate

plaintiffs’ political opponents from liability

for criminal misconduct.

(c) On the part of all defendants, to promote

such hatred of plaintiffs and other members

of their class that they will be physically

attacked by the protected political

opponents if they dare to visit the City of

Portland to exercise their federally-

protected rights of free speech and the right

to peaceably assemble, in order to bar them

and members of their class from any

appearance in Portland.

Unlike Paragraph 254, Paragraph 255 sounds in Monell

liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

694 (1978) (requiring proof of a policy, custom, or practice

to maintain a § 1983 claim against a local government).

Although these paragraphs actually name parties against

whom Plaintiffs make various claims, it is not clear whether

the three subparagraphs are instances of the claims made in

Paragraph 254, or whether these are free-standing Monell

claims. If it is the latter, Plaintiffs should identify the

policies or identify the paragraphs in the complaint where

the policies are mentioned, and the Monell claims should be

set forth as a separate claim. Further, it is not clear that the

Defendants identified in subparagraphs (a) through (c) had

50 GIBSON V. CITY OF PORTLAND

authority to establish the policies. Traynor, for example, is

a police detective. Is he a policymaking official for the City

of Portland? Are deputy district attorneys policymakers for

Multnomah County or MDCA? Proper allegations would set

forth the elements of a Monell claim, clarifying the claim for

Defendants and the court; they would also allow Defendants

to test Plaintiffs’ claim in a motion to dismiss under Rule

12(b)(6). Questions about who can make policy for a

governmental entity are critical to Monell liability. See

generally McMillian v. Monroe Cnty., 520 U.S. 781 (1997)

(discussing whether the sheriff was a policymaker for the

county or the state). And despite identifying the players,

Plaintiffs have only listed multiple purportedly

unconstitutional actions without stating how the named

parties took those unconstitutional actions.

Plaintiffs suggest that requiring them to tether facts to

legal theories, as opposed to “realleging” every fact in each

claim for relief, would render their pleading neither short nor

plain. In effect, they argue that this would so multiply the

complaint as to violate the rule against prolixity. See, e.g.,

McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996)

(“[T]he very prolixity of the complaint made it difficult to

determine just what circumstances were supposed to have

given rise to the various causes of action.”); Cafasso, U.S. ex

rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th

Cir. 2011) (“Our district courts are busy enough without

having to penetrate a tome approaching the magnitude of

War and Peace to discern a plaintiff’s claims and

allegations.”); see also Mumm v. Jacob E. Decker & Sons,

301 U.S. 168, 170 (1937) (“The purpose of the Equity Rules

[adopted in 1912] was to simplify equity pleading and

practice, and with respect to the former to dispense with

prolix and redundant averments which had made equity

GIBSON V. CITY OF PORTLAND 51

pleading an outstanding example of unnecessary

elaboration.”). We think this misunderstands the rules. The

touchstone of Rule 8 is to provide notice of the entitlement

to relief. Starr, 652 F.3d at 1212. Factual allegations,

however detailed, must be tied to corresponding causes of

action. Plaintiffs may do so in a short and plain manner, but

it must be in a manner that actually gives Defendants notice

of the claim. Moreover, we do not think Plaintiffs need to

reallege the facts verbatim. That is one purpose for Rule

10(b), which anticipates that matters previously plead may

be incorporated by reference. For instance, we would not

quarrel with the instant complaint if it incorporated by

reference specific paragraphs of facts into specific claims for

relief. If the complaint did that, we would be able to

understand who took what actions. 11

Second Claim for Relief: § 1985. The Second Claim for

Relief includes just two paragraphs, one realleging every

preceding paragraph of the complaint, including the First

Claim for Relief, and another, Paragraph 258, stating

11

The Supreme Court’s decision in Johnson v. City of Shelby, 574 U.S.

10 (2014) (per curiam), offers Plaintiffs no respite. In Johnson, the Fifth

Circuit had dismissed a complaint merely for not citing § 1983 by name.

The Supreme Court summarily reversed. Id. at 10. In so doing, the Court

recognized that Twombly and Iqbal’s plausibility pleading standard

applied to factual allegations, not legal theories. Id. at 12. All that

plaintiffs were missing was “a citation to § 1983.” Id.

We have more systemic problems here. Plaintiffs identified detailed

facts in one section and the conclusory legal theories in another; the link

between them is missing. Thus, unlike Johnson, we do not dismiss for

failure to call a specific legal theory by its name. See id. Instead, we

dismiss because Plaintiffs have failed to tie their factual allegations to a

legal theory that demonstrates an entitlement to relief. Because of that,

neither Defendants nor the district court had adequate notice of the facts

supporting each legal claim.

52 GIBSON V. CITY OF PORTLAND

verbatim: “Defendants conspired to deprive plaintiffs of

federally-protected rights as alleged above, and at least one

of the conspirators did an overt act in furtherance of the

conspiracy, which did injured [sic] plaintiffs in their person

and property and deprived them of rights and privileges of

American citizens.” Section 1985 of Title 42 of the United

States Code provides a cause of action for conspiracy to

interfere with civil rights. It has three distinct subsections

addressing distinct conspiracies: preventing a state officer

from performing his duties, § 1985(1); deterring by force,

intimidation, or threat a party, witness, or juror, § 1985(2);

and going in disguise to deprive a person of their equal

protection of the laws or “equal privileges and immunities

under the laws,” § 1985(3). See Griffin v. Breckenridge, 403

U.S. 88, 102–03 (1971) (setting out the elements of a cause

of action under § 1985(3)).

For the same reasons as the First Claim for Relief,

Paragraph 258 is insufficient. For starters, the complaint

does not even identify the subsection or subsections of

§ 1985 under which Plaintiffs are suing. Are they alleging a

conspiracy to violate each of the three subsections of

§ 1985? As with the First Claim for Relief, Paragraph 258

refers globally to “Defendants” without identifying specific

actors. Is there a single conspiracy here? Are all of the

Defendants participants? The complaint alleges that “at least

one of the conspirators did an overt act” but does not identify

either the conspirator or the overt act. 12 There are a number

of state actors who feature prominently in the complaint,

12

To be sure, the complaint is replete with references to conspiracies.

Indeed, in the fact section, Plaintiffs have subtitled one section “Further

Overt Acts in Furtherance of the Conspiracy,” and another “Further

Conduct in Furtherance of the Conspiracy.”

GIBSON V. CITY OF PORTLAND 53

including actors who are not named as Defendants, such as

Mayor Wheeler and Portland Police Chief Danielle Outlaw.

Are they members of the conspiracy? Did either of them

commit the overt act complained of? How is a defendant or

a court to assess a plaintiff’s allegations if we do not know

who did what and, instead, are offered only “unadorned, the-

defendant-unlawfully-harmed-me accusation[s]”? Iqbal,

556 U.S. at 678. The Second Claim for Relief must be

repleaded to identify the allegedly offending parties by

name, their allegedly unconstitutional actions by something

more than reference to the entire complaint, and the legal

basis for their claim under § 1985.

Third Claim for Relief: § 1986. The Third Claim for

Relief realleges all the prior paragraphs and then states:

“Defendants had knowledge of the wrongs to be committed,

had it within their power to prevent or aid in preventing the

commission of the same, but failed to do so, in violation of

42 U.S.C. § 1986.” Section 1986 supplies a cause of action

against a person who knew of the conspiracy mentioned in

§ 1985 and “having power to prevent or aid in preventing the

commission on the same, neglects or refuses so to do.” 42

U.S.C. § 1986.

We think we have adequately made our point. As with

the Second Claim for Relief, we have no idea whether

“Defendants” means all of the Defendants or some of the

Defendants. Are Plaintiffs alleging that even the

government entities are “persons” who had power to prevent

injury under § 1985?

Fourth Claim for Relief: State Torts. The Fourth Claim

for Relief, identifying two counts and one “alternative

count” under state tort law, follows the same form. It alleges

malicious prosecution, false arrest and imprisonment, and

54 GIBSON V. CITY OF PORTLAND

negligence. It alleges in Paragraph 262, for example, that

“Defendants insisted upon the initiation and continuance of

criminal proceedings against plaintiffs, which ultimately

terminated in plaintiffs’ favor, had malice instituting such

proceedings, and did so without probable cause for doing

so.” This claim has greater detail with respect to the

elements of a malicious prosecution claim under Oregon

law. See Miller v. Columbia Cnty., 385 P.3d 1214, 1223 (Or.

Ct. App. 2016). But it merely realleges all the prior

paragraphs and continues to refer to “Defendants” without

identifying which defendants are responsible for the alleged

tort. For the reasons that the first three claims for relief

failed, so does the fourth.

3. Repleading

We conclude that the failures of the complaint should be

corrected. Absent a Rule 8-compliant pleading, we are left

to speculate about the causes of action pleaded by Plaintiffs.

Doing so would be improper except, as explained in the prior

section, in circumstances where we can surmise that

Plaintiffs are pleading claims implicating immunities from

suit that warrant prompt adjudication. 13

Accordingly, we hold that Plaintiffs’ complaint violated

Rule 8, and the district court acted within its discretion in

dismissing the complaint on this ground. Because we have

clarified the standards for adducing shotgun pleadings,

Plaintiffs should have an opportunity to replead their

13

We do not, as the dissent suggests, hold that “future courts applying

the shotgun pleading rule . . . must evaluate issue-by-issue which matters

are appropriately resolved despite an invalid pleading and which are

not.” Dissenting Op. at 73. Rather, as we have discussed, an otherwise

invalid pleading that implicates immunities from suit presents a unique

circumstance warranting early resolution of those issues.

GIBSON V. CITY OF PORTLAND 55

complaint, consistent with these standards and the prior

section concerning immunity from suit. We affirm the

judgment of the district court dismissing the complaint but

reverse with respect to the court’s decision to dismiss certain

claims with prejudice. Subject to the limited dismissals

articulated below, Plaintiffs may replead their complaint to

comply with Rule 8. 14

IV. CONCLUSION

We AFFIRM the district court’s dismissal with

prejudice of all claims against MCDA on the basis of

sovereign immunity. We AFFIRM the district court’s

dismissal with prejudice of all claims against District

Attorneys Underhill and Schmidt on the basis of absolute

prosecutorial immunity. We AFFIRM the district court’s

dismissal with prejudice of all claims against Deputy District

Attorney Hughey on the basis of absolute prosecutorial

immunity. We REVERSE the district court’s dismissal of

the claims against Deputy District Attorney Kalbaugh,

against whom Plaintiffs may replead their claims related to

his allegedly false affidavits. We REVERSE the district

court’s dismissal with prejudice of Plaintiffs’ claims against

14

The dissent’s concern that our holding today will somehow result in

an additional and unnecessary appeal on the “substantive issues that the

district court has already decided” is unwarranted. Dissenting Op. at 58,

76. Despite discussing the merits of Plaintiffs’ claims, the district court

dismissed many of those claims without prejudice and expressly granted

Plaintiffs the opportunity to replead them. And the dissent does not argue

that these dismissals should have instead been with prejudice. In other

words, regardless of whether we affirm those dismissals on the merits or

on Rule 8 grounds, Plaintiffs will still have an opportunity to replead

those claims, the district court will again have to rule on them, and

Plaintiffs may again choose to appeal them to this court.

56 GIBSON V. CITY OF PORTLAND

Multnomah County to the extent they are based on

Multnomah County’s own acts or omissions.

We AFFIRM the district court’s judgment that the

complaint is otherwise inadequate under Rule 8, but

REMAND to permit Plaintiffs to replead their claims as

follows:

(1) Against Deputy District Attorney

Kalbaugh, Plaintiffs may replead all

claims related to his allegedly false

affidavits.

(2) Against Multnomah County, Plaintiffs

may replead all claims to the extent they

are based on Multnomah County’s own

acts or omissions.

(3) Against Detective Traynor, Plaintiffs may

replead all claims to the extent they do not

arise from his grand jury testimony.

(4) Against the City of Portland, Plaintiffs

may replead all claims.

Each party shall bear its own costs on appeal.

AFFIRMED IN PART; REVERSED IN PART;

REMANDED IN PART.

GIBSON V. CITY OF PORTLAND 57

FORREST, Circuit Judge, concurring in part and dissenting

in part.

The majority errs in sua sponte adopting the “shotgun

pleading” rule. It is both unnecessary to resolve this case and

unwise. None of the parties advocated for this rule, and the

pleading requirements in the Federal Rules of Civil

Procedure are sufficient as written. Rather than meddling

with pleading requirements, we should have focused on the

arguments that the Defendants pressed and that the district

court decided.

To be clear, I agree with the majority on the following

points: (1) the Multnomah County District Attorney’s Office

and its employees (Prosecutor Defendants) have immunity

except as relates to the allegations that Deputy District

Attorney Brad Kalbaugh filed a false affidavit when he

applied for an arrest warrant; (2) the claims asserted against

Multnomah County, which are all based on the immune acts

of the Prosecutor Defendants, necessarily fail; and

(3) Portland Police Detective Christopher Traynor has

immunity in relation to his grand-jury testimony. But

because the majority remands several of Plaintiffs’ claims

for repleading under its new shotgun-pleading rule, it does

not address other arguments that Defendants raised in

seeking dismissal of Plaintiffs’ complaint. I would reach

those additional issues.

Below, I address both why we should not adopt the

shotgun-pleading rule and how I would resolve the issues

that the majority sidestepped. On the latter point, I would

hold that the district court (1) correctly dismissed the state-

law malicious-prosecution claims brought against the City

Defendants because Plaintiffs failed to allege that pressure

exerted by the City was the determining factor in the District

58 GIBSON V. CITY OF PORTLAND

Attorney’s Office’s decision to prosecute Plaintiffs, and

(2) erred in dismissing the federal-law claims asserted

against the City Defendants as untimely.

A. “Shotgun Pleadings”

The majority’s sua sponte adoption of the shotgun-

pleading rule is error for at least two reasons. First, this rule

is not before us. No party relied on it or asked us to adopt it.

Federal Rule of Civil Procedure 8 and the adequacy of the

pleading was also extraneous to the district court’s decision.

See Bautista v. Los Angeles County, 216 F.3d 837, 842–44

(9th Cir. 2000) (Reinhardt, J., concurring separately)

(faulting the lead opinion for producing a “general

educational guide” about pleading rules when no party

requested one, and the district court did not rely on pleading

rules in dismissing the case). Indeed, the majority’s

intervention here creates a substantial likelihood (if not

certainty) that Plaintiffs will appeal again raising the same

substantive issues that the district court has already decided,

and that are currently presented for our decision. Second, to

the extent a pleadings analysis is warranted here, it should

turn on the text of the Federal Rules of Civil Procedure, not

a new judicially imposed standard.

1. Party Presentation

Start with the easiest reason not to embark on the

majority’s shotgun-pleadings journey: the parties didn’t ask

us to. “As a general rule, our system is designed around the

premise that parties represented by competent counsel know

what is best for them, and are responsible for advancing the

facts and argument entitling them to relief.” United States v.

Sineneng-Smith, 590 U.S. 371, 375–76 (2020) (citation

modified) (reversing this court for drastically exceeding

the issues presented by the parties); Clark v. Sweeney, 607

GIBSON V. CITY OF PORTLAND 59

U.S. ---, 2025 WL 3260170, at *1 (Nov. 24, 2025) (per

curiam). “Counsel almost always know a great deal more

about their cases than we do,” Greenlaw v. United States,

554 U.S. 237, 244 (2008) (citation omitted), and we forego

the benefits of our adversarial system when we lose sight of

that fact.

There are three groups of defendants here: the Prosecutor

Defendants, Multnomah County, and the City Defendants.

Only one of these groups—the Prosecutor Defendants—

raised a pleading challenge. And in doing so, they relied only

on the text of Rule 8; the idea of shotgun pleading is absent

from their arguments.

The district court on its own referenced the concept of

shotgun pleadings in concluding that Plaintiffs’ allegations

against the Prosecutor Defendants failed to satisfy Rule

8(a)(2), but it did not base its dismissal of Plaintiffs’

complaint on pleading grounds, shotgun or otherwise.

Rather, it granted the Prosecutor Defendants’ motion to

dismiss based on Eleventh Amendment and prosecutorial

immunity. And it did not permit repleading on any of the

claims asserted against these Defendants “because

amendment would not cure the defects.” So, as far as I can

tell, the district court’s Rule 8 evaluation did not contribute

to its final judgment. This is not a record that invites us to

consider the shotgun-pleading rule.

The majority disagrees, asserting that the parties’ failure

to discuss shotgun pleadings “does not prevent us from

addressing the substance of the district court’s ruling and the

parties’ arguments.” Maj. Op. 36 n.9. This does not make

sense because, as just explained, the substance of the district

court’s ruling on the claims asserted against the Prosecutor

Defendants was immunity. And the adequacy of Plaintiffs’

60 GIBSON V. CITY OF PORTLAND

allegations does not go to the substance of any of the other

Defendants’ arguments because they did not raise this issue.

The party-presentation principle of course does not

hamstring courts from “identify[ing] and apply[ing] the

correct legal standard, whether argued by the parties or not.”

In re Nance, 156 F.4th 961, 969 (9th Cir. 2025) (citation

omitted); Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99

(1991). But identifying law that the parties missed is

different from creating new law that the parties didn’t ask

for. See Sineneng-Smith, 590 U.S. at 376 (“Courts are

essentially passive instruments of government. They do not,

or should not, sally forth each day looking for wrongs to

right.”) (citations omitted); see also Zakora v. Chrisman, 44

F.4th 452, 486 (6th Cir. 2022) (Sutton, C.J., concurring in

part and dissenting in part) (“[A] case is not a Greek play in

which all-seeing judges, unbidden, come to the rescue by

creating solutions that the parties do not seek.”). The latter is

what the majority does here. The majority cannot be right in

saying both that the federal rules are synonymous with the

shotgun-pleading rule and that we need to adopt a new

shotgun-pleading rule. Compare Maj. Op. at 37 with id. at

43. The federal rules either include the shotgun-pleading rule

that the majority adopts or they do not. And as I explain

below, they do not.

Finally, even if one were inclined to stretch the

adversarial principles that animate the party-presentation

principle to decide an unaddressed issue of law, there are

important reasons not to do so here. Sua sponte development

of law is inherently problematic because anytime a court

ventures beyond the issues presented by the parties there is

a risk of unfairness. Cf. Snider v. Melindez, 199 F.3d 108,

113 (2d Cir. 1999) (“[P]roviding the adversely affected party

with notice and an opportunity to be heard plays an

GIBSON V. CITY OF PORTLAND 61

important role in establishing the fairness and reliability of

the order.”); see also United Ass’n Local 38 Pension Tr. Fund

v. Aetna Cas. & Sur. Co., 790 F.2d 1428, 1432 n.3 (9th Cir.

1986) (Norris, J., concurring in part and dissenting in part)

(pointing out that Ninth Circuit General Order 4.2, which

requires panels to give “serious consideration” to additional

briefing when raising new issues, “protects the integrity of

the adversary process by ensuring that each party has a full

and fair opportunity to address the relevant issues.”). For

example, Plaintiffs may have worthy counterarguments to

the propriety of the shotgun-pleading rule that, if presented,

could aid the court in making a fully informed decision. But

Plaintiffs had no reason to raise those arguments where none

of the Defendants advocated for the shotgun-pleading rule. 1

The majority’s freelancing in the context of pleading

rules is also concerning. If it were developing a substantive

area of law, any missteps might be confined to like cases.

But pleading rules affect each of the roughly 50,000 civil

cases filed in the district courts in our circuit every year. 2

This context should counsel caution, not spontaneous legal

developments without full adversarial testing. After all, we

“do not sit as self-directed boards of legal inquiry and

research.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.

1983) (Scalia, J.).

1

The majority observes that district courts within this circuit regularly

apply a shotgun-pleading rule. See Maj. Op. 43–44 & n.10. If that is true,

then it should be easy enough to wait for an appropriate case to test the

validity of this rule.

2

See United States Courts, U.S. District Courts–Civil Federal Judicial

Caseload Statistics (Mar. 31, 2024), https://www.uscourts.gov/data-

news/data-tables/2024/03/31/federal-judicial-caseload-statistics/c-1

[https://perma.cc/8VS4-M549].

62 GIBSON V. CITY OF PORTLAND

2. Substantive Concerns

I hesitate to discuss the merits of the shotgun-pleading

rule when there has been no adversarial presentation on this

issue, but I am compelled to because the majority fully

embraces the rule. My concerns largely boil down to this: the

Federal Rules of Civil Procedure, as written, are sufficient,

and the shotgun-pleading rule undermines some of the

purposes animating those rules. The majority’s reasoning for

adopting this rule is also flawed.

a.

Federal Rule of Civil Procedure 8 provides the governing

pleading standard. A claim for relief must contain:

(1) a short and plain statement of the grounds

for the court's jurisdiction, unless the court

already has jurisdiction and the claim needs

no new jurisdictional support;

(2) a short and plain statement of the claim

showing that the pleader is entitled to relief;

and

(3) a demand for the relief sought, which may

include relief in the alternative or different

types of relief.

Fed. R. Civ. P. 8(a). “No technical form [of pleading] is

required.” Fed. R. Civ. P. 8(d)(1). Rule 8 is buttressed by

Rule 10, which allows incorporation by reference, Fed. R.

Civ. P. 10(c), and instructs that “each claim founded on a

separate transaction or occurrence” be stated in a separate

count when “doing so would promote clarity,” Fed. R. Civ.

P. 10(b). Rounding things out is Rule 12(e), which allows a

responding party to seek a more definite statement when a

GIBSON V. CITY OF PORTLAND 63

pleading is “so vague or ambiguous that the party cannot

reasonably prepare a response.” Fed. R. Civ. P. 12(e); see

also Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513–14

(2002) (interpreting “Rule 8(a)’s simplified notice pleading

standard” in the context of its “inextricabl[e] link[]” with

Rule 12(e)).

I just recounted the most salient pleading rules in one

paragraph. That is not an accident. The pleading standards

codified in the Federal Rules of Civil Procedure departed

from a byzantine code-pleading era in which “one misstep

by counsel” could be outcome-determinative, regardless of

the merits. See id. at 514 (quoting Conley v. Gibson, 355 U.S.

41, 48 (1957), abrogated by Bell Atl. Corp. v. Twombly, 550

U.S. 544 (2007)). Congress thought it wise to shed the

complexities of the old regime, and it ushered in more

straightforward notice pleading. Id.; Starr v. Baca, 652 F.3d

1202, 1212 (9th Cir. 2011).

Simply put, the Federal Rules establish that, subject to a

few broad constraints, a complaint should be judged on its

merits rather than its form. Swierkiewicz, 534 U.S. at 514;

Starr, 652 F.3d at 1212. As the Supreme Court recently

counseled, it has “consistently rejected” efforts by “lower

federal courts . . . to require more information” than what is

directed by Rule 8’s plain text. Berk v. Choy, No. 24-440,

2026 WL 135974 at *4 (U.S. Jan. 20, 2026). So long as a

complaint “give[s] notice of the claim such that the opposing

party may defend himself or herself effectively,” litigation

may proceed. Starr, 652 F.3d at 1212.

The shotgun-pleading rule defies the underlying notice-

pleading principle that guided Congress and that is reflected

in the Rules that Congress enacted. The rule also seems

destined to be another example of “the problems that arise

64 GIBSON V. CITY OF PORTLAND

when judges create atextual legal rules and frameworks.”

Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 313 (2025)

(Thomas, J., concurring). Such enterprises “have a tendency

to distort the underlying statutory text, impose unnecessary

burdens on litigants, and cause confusion for courts.” Id. The

majority’s motivation for augmenting the existing rules

demonstrates the point.

The majority reasons that “the problem with shotgun

pleadings is that they make it difficult, if not impossible, for

the opposing party to formulate a response.” Maj. Op. 39–

40. I do not dispute that nebulous pleading can thwart

orderly and efficient litigation. But there is no need to “fix”

this problem by establishing a new pleading rule. The

existing rules do the necessary work while also giving

fidelity to our adversarial system. Consider Rule 12(e). The

relief it affords—requiring the pleading party to provide

more specificity and clarity—must be party driven. 3 The

party seeking clarification of a pleading also “must point out

the defects complained of and the details desired.” Fed. R.

Civ. P. 12(e) (emphasis added). Unlike other motions

provided for in the Rules, there is no provision for a court to

3

The current language of Rule 12(e) reflects the trend towards simplified

notice standards for the pleadings. As originally enacted, defendants

could move for a bill of particulars, which would become part of the

pleadings. See Fed. R. Civ. P. 12(e) (1937); see also Bill of Particulars,

Black’s Law Dictionary (12th ed. 2024) (“A formal, detailed statement

of the claims or charges brought by a plaintiff.”). That allowance became

“the subject of more judicial rulings than any other part of the rules, and

[was] much criticized by commentators, judges and members of the bar,”

not the least of which because it “served to neutralize any helpful benefits

derived from Rule 8.” Fed. R. Civ. P. 12(e) advisory committee’s note to

1946 amendment. Unsurprisingly, then, the bill of particulars was cast

aside less than a decade after the Rules were first adopted. See Fed. R.

Civ. P. 12(e) (1946).

GIBSON V. CITY OF PORTLAND 65

sua sponte direct a more definite pleading. Compare id., with

Fed. R. Civ. P. 12(f) (motion to strike), and Fed. R. Civ. P.

16 (pretrial conferences), and Fed. R. Civ. P. 56(f)(3)

(motion for summary judgment).

Some courts that have adopted the shotgun-pleading rule

honor the adversarial aspect of these procedural

requirements. For example, in Anderson v. District Board of

Trustees. of Central Florida Community College, the

Eleventh Circuit concluded that the plaintiffs’ complaint was

an impermissible shotgun pleading. 77 F.3d 364, 366 (11th

Cir. 1996). But because the defendant chose not to seek a

more detailed statement of the plaintiff’s allegations “as a

matter of strategy,” the court proceeded to consider the

merits of the district court’s ruling on the defendant’s

immunity arguments. Id. at 367. Concluding that it could not

make enough sense of the plaintiff’s allegations to determine

whether the defendant was protected by immunity, the court

affirmed the district court’s denial of the defendant’s motion

for summary judgment. Id. But see Davis v. Coca-Cola

Bottling Co., 516 F.3d 955, 984 (11th Cir. 2008) (stating that

where the defendant failed to seek a more definite statement,

the district court should have done so sua sponte). Similarly,

in Lee v. Ohio Education Association, the Sixth Circuit

concluded that the plaintiff’s complaint was an improper

shotgun pleading. 951 F.3d 386, 393 (6th Cir. 2020). But it

also addressed the substance of the plaintiff’s claim because

the defendant had not sought to clarify the pleadings and

instead moved to dismiss. Id.

The majority’s application of the shotgun-pleading rule

is not faithful to basic adversarial principles. And its concern

about responding parties being able to defend themselves

falls flat here. Each Defendant moved to dismiss the claims

asserted against it after identifying specific deficiencies in

66 GIBSON V. CITY OF PORTLAND

the Plaintiffs’ allegations. None of the defendants thought it

necessary to request a more definite statement of the

allegations against them. Even though I agree that Plaintiffs’

complaint is not a model for others to follow, the Defendants’

choice not to seek relief under Rule 12(e) is also not

surprising. As the majority concedes, Plaintiffs laid out the

facts underlying their claims in capacious detail. We can

only assume that Defendants made a strategic choice to

pursue dismissal rather than repleading, which paid off in the

district court where their motions were all granted. We

should have respected their litigation choices and simply

resolved the grounds for dismissal that they advanced.

It is concerning that the majority not only ignores the

procedure established by the Civil Rules and Defendants’

litigation choices but further uses this case as an

“opportunity to make clear that district courts do not have to

accept such shotgun pleadings.” Maj. Op. 42. That is, the

majority instructs district courts that they also need not

respect parties’ litigation choices or the adversarial

principles embedded in the Rules.

The majority roots its lesson for the district courts in their

inherent authority to control their dockets. See id. 42–45.

The majority also repeatedly cites Rule 1, which directs

courts “to secure the just, speedy, and inexpensive

determination of every action.” Fed. R. Civ. P. 1. While

district courts do “have inherent power to control their

dockets,” that power cannot “nullify the procedural choices

reserved to parties under the federal rules.” Atchison, Topeka

& Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071, 1074

(9th Cir. 1998). This makes significant that Rule 12(e) gives

only parties the ability to seek clarification of the pleadings,

unlike other rules that provide for sua sponte court

intervention. See Fed. R. Civ. P. 12(f), 16, 56(f)(3). Simply

GIBSON V. CITY OF PORTLAND 67

put, a court’s inherent authority is not a grant of power to do

all things one might consider a good idea in managing or

resolving cases. See Chambers v. NASCO, Inc., 501 U.S. 32,

44 (1991) (“Because of their very potency, inherent powers

must be exercised with restraint and discretion.”); see also

id. at 47 (“[T]he exercise of the inherent power of lower

federal courts can be limited by statute and rule.”).

b.

The majority identifies specific categories of shotgun

pleadings that it deems invalid. These categories further

demonstrate that the majority’s new standard is divorced

from the Rules.

i. Multiple Theories in a Single Count

The majority first concludes that Plaintiffs’ complaint

must be dismissed as a shotgun pleading because it asserts

claims that encompass disparate legal theories within a

single count. See Maj. Op. 47. For example, Plaintiffs assert

one 42 U.S.C. § 1983 claim that includes theories based on

the First Amendment, various provisions of the Fifth

Amendment, and the Equal Protection Clause of the

Fourteenth Amendment.

Rule 10(b) addresses the proper use of counts. If it

“would promote clarity, each claim founded on a separate

transaction or occurrence . . . must be stated in a separate

count.” Id. The transaction-or-occurrence test focuses on the

“similarity in the factual background of a claim” and

whether a claim “arise[s] out of a systematic pattern of

events.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir.

68 GIBSON V. CITY OF PORTLAND

1997) (emphasis added). 4 We apply this test flexibly,

liberally construing what constitutes the same transaction or

occurrence. For example, in Pochiro v. Prudential Ins. Co.

of Am., 827 F.2d 1246 (9th Cir. 1987), we held that an

insurance company’s claims against its former employee for

breach of an employment contract and intentional

interference with business relations based on the employee’s

alleged theft of client lists arose out of the same transaction

or occurrence as the employee’s counterclaims for

defamation based on the company calling him “a crook.” Id.

at 1250–51. 5 It did not matter that the alleged defamation

was “a bit removed” from the insurer’s attempt to stop the

employee from using the customer records, or that the legal

elements for the various claims were different. Id. It was

enough that the alleged facts were “intertwined.” Id. at 1250.

Although Plaintiffs here list disparate legal theories, they

arise out of the same factual background: the allegation that

local government actors in Portland acted in various

unlawful ways to punish Plaintiffs for their role in the Cider

Riot incident and other protests and that those actions

deprived Plaintiffs of their civil rights. Because the multiple

constitutional violations referenced in the Plaintiffs’ § 1983

4

See also 5A Wright & Miller’s Federal Practice & Procedure § 1324

(4th ed. 2025) (“[I]t seems reasonably clear that Rule 10(b) does not

make it necessary to use separate counts to state different theories of

recovery or to seek relief under separate statutory provisions.” (footnote

omitted)); 35A C.J.S. Fed. Civ. P. § 310 (2025) (“Where a series of acts

are alleged to be part of a plan to injure the plaintiff, a separation into

counts is not necessary to facilitate the clear presentation of the matters

set forth.”).

Although Pochiro concerned a state rule of civil procedure, it was

5

modeled verbatim after the federal rule and we interpreted it in lockstep

with the federal transaction-or-occurrence test. 827 F.2d at 1249–50.

GIBSON V. CITY OF PORTLAND 69

claim are based on a common factual background, the Rules

do not prohibit this claim from being stated in a single count.

The majority’s requirement that Plaintiffs “put[] each legal

theory in a separate count is a throwback to code pleading,

perhaps all the way back to the forms of action.” NAACP v.

Am. Fam. Mut. Ins. Co., 978 F.2d 287, 291–92 (7th Cir.

1992). And by supplementing Rule 10’s transaction-or-

occurrence test with a legal-theory test for when separate

counts are required, the majority runs afoul of the expressio

unius canon. See Antonin Scalia & Bryan Garner, Reading

Law: The Interpretation of Legal Texts 107–11 (2012)

(“[S]pecification of the one implies exclusion of the other.”).

Where Congress has specified when claims must be listed as

separate counts, we should not add to its work.

The majority’s requirement that each legal theory be

stated as a separate count also creates tension with Rule

8(d)(2), which allows parties to “set out 2 or more statements

of a claim or defense alternatively or hypothetically, either

in a single count or defense or in separate ones.” Fed. R Civ.

P. 8(d)(2). That is, a plaintiff advancing different liability

theories can choose whether to do so in separate counts or

the same count. The majority’s rule takes that choice away.

ii. Tying Facts to Law

Next, the majority faults Plaintiffs for not providing even

“threadbare recitals of the elements of a cause of action.”

Maj. Op. 47 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). This is backwards. Iqbal said that threadbare

recitals of the elements of a cause of action are insufficient;

there is no basis in Supreme Court (or any other) precedent

to conclude that such recitals are required. See Iqbal, 556

U.S. at 678; see also Johnson v. City of Shelby, 574 U.S. 10,

12 (2014) (per curiam) (discounting the relevance of

70 GIBSON V. CITY OF PORTLAND

Twombly and Iqbal to the non-factual requirements of a

complaint).

The critical aspect of a complaint lies in the facts it

alleges, not the law that it recites. See 35A C.J.S. Fed. Civ.

P. § 311 (2025) (“Well-pleaded facts, not legal theories or

conclusions, determine the adequacy of a complaint.”).

“Conspicuously absent from Federal Rule of Civil Procedure

8(a)(2) is the requirement found in the codes that the pleader

set forth the ‘facts’ constituting a ‘cause of action.’” 5 Wright

& Miller’s Federal Practice & Procedure § 1216 (4th Ed.

2025). The majority’s requirement that “[f]actual

allegations, however detailed, must be tied to corresponding

causes of action,” Maj. Op. 51, makes little sense when the

Rules do not require legal theories to be set out in any

particular form. See id.; Johnson, 574 U.S. at 11–12. By

reintroducing the requirement that specific legal theories

must be tied to specific facts as a matter of pleading, the

majority risks reintroducing the “unfortunate rigidity and

confusion” that the Rules Committee and Congress

abandoned when they swapped code pleading for notice

pleading. Wright & Miller § 1216; NAACP, 978 F.2d at 292.

iii. Multiple Defendants in a Single Count

The majority protests that Plaintiffs included multiple

defendants in a single count. Maj. Op. 47. Again, Rule 10(b)

governs the proper designation of counts. Separation by

defendant is not required. See also Wright & Miller § 1324

(clarifying that Rule 10(b) does not require separate counts

against multiple defendants). So once more, the majority’s

shotgun-pleading rule judicially amends Rule 10(b) to

require more than it says.

It is important not to confuse the form of the complaint

with the underlying substance. If a plaintiff alleges that a

GIBSON V. CITY OF PORTLAND 71

group of defendants deprived him of his civil rights in

violation of § 1983, dismissal for imprecise pleading is

likely unwarranted even if the complaint fails to specify the

action taken by each individual defendant. Contra Maj. Op.

47. But if an individual defendant cannot identify from the

facts pled any plausible allegation that he violated the

plaintiff’s civil rights, that defendant can move to dismiss

under Rule 12(b)(6). In fact, I would dismiss Plaintiffs’

complaints against Multnomah County on precisely this

basis. See infra Part B.1.

iv. Over-Incorporation

Although the majority does not base its decision on this

point, it identifies as a category of impermissible shotgun

pleading “a complaint containing multiple counts where

each count adopts the allegations of all preceding counts,

causing each successive count to be a combination of the

entire complaint.” Maj. Op. 39 (quoting 35A C.J.S. § 310

(2025)); see also Weiland v. Palm Beach Cnty. Sheriff’s Off.,

792 F.3d 1313, 1321 (11th Cir. 2015) (identifying this as the

most common type of shotgun pleading). Presumably, the

majority should reject Plaintiffs’ complaint on this ground as

well. After all, each of Plaintiffs’ claims indiscriminately

reincorporate every preceding paragraph. But however

sloppy, no competent lawyer would assume this inartful

incorporation means that Plaintiffs actually intended to

incorporate prior claims into later claims. At a certain point,

common sense must prevail. Cf. Swierkiewicz, 534 U.S. at

514 (“The Federal Rules reject the approach that pleading is

a game of skill.” (quoting Conley, 355 U.S. at 48)). Perhaps

that is why the majority does not apply this limitation to this

case.

72 GIBSON V. CITY OF PORTLAND

c.

Finally, I briefly touch on some of the additional

weaknesses in the majority’s reasoning for adopting the

shotgun-pleading rule.

First, it is incorrect that we have already addressed “the

relationship between shotgun pleadings and Rule 8,” see

Maj. Op. 40 (citing Destfino v. Reiswig, 630 F.3d 952, 958–

59 (9th Cir. 2011)). Destfino referenced “shotgun pleading”

only in recounting how the district court characterized the

Plaintiffs’ complaint. 630 F.3d at 958. Our analysis in that

case focused on whether dismissal should have been with or

without prejudice. Id. at 958–59. Make no mistake, the steps

the majority takes today are neither compelled nor counseled

by anything we have done in the past. See United States v.

Kirilyuk, 29 F.4th 1128, 1134 (9th Cir. 2022) (“if a prior case

does not raise or consider the implications of a legal

argument, it does not constrain our analysis” (quotation

omitted)).

Second, there is also no reason to follow the Eleventh

Circuit’s atextual approach to pleadings, on which the

majority leans. Cf. Maj. Op. 41 (“The Eleventh Circuit has

been the most vocal of the circuits.”). The concept of

shotgun pleading first surfaced in that court in a footnote in

a dissent. See T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d

1520, 1543 n.14 (11th Cir. 1985) (Tjoflat, J., dissenting). A

few years later, that dissenting judge conveniently imported

the idea into a majority opinion. Cole v. United States, 846

F.2d 1290, 1293 & n.4 (11th Cir. 1988). But the analysis

supporting the importation was also confined to a footnote

declaring: “The Federal Rules of Civil Procedure condemn

[shotgun] pleadings.” Id. Now the shotgun pleading rule is

GIBSON V. CITY OF PORTLAND 73

firmly rooted in the Eleventh Circuit despite its wily

origins. 6

Third, much of what the majority categorizes as Rule 8

deficiencies are really contentions that Plaintiffs failed to

state a claim. For example, the majority states that Plaintiffs

did not sufficiently allege the individuals who acted on

behalf of the County and the City had policymaking

authority, as required to establish Monell liability. Maj. Op.

49–51. If Plaintiffs failed to allege sufficient facts to satisfy

each element of a claim for relief, that is reason to dismiss

for failure to state a claim. See Iqbal, 556 U.S. at 677–80. It

is not a reason to sua sponte adopt the shotgun-pleading rule

and require repleading.

Fourth, the majority’s selection of which issues to

resolve, despite what it views as an indecipherable shotgun

pleading, and which issues to sidestep pending repleading is

also confusing. While it addresses the immunity defenses, it

declines to address the statute-of-limitations defense despite

the extensive factual allegations that identify the timing of

6

Forty years on, the Eleventh Circuit occasionally seems dubious of its

experiment. As one opinion put it:

T.D.S. was this Court’s first shot in what was to

become a thirty-year salvo of criticism aimed at

shotgun pleadings, and there is no ceasefire in

sight. Some of our shooting, which has mostly been

done with nonlethal dicta, has at times been nearly as

lacking in precision as the target itself. At times we

have used the term “shotgun pleading” to mean little

more than “poorly drafted complaint.”

Weiland, 792 F.3d at 1321 (11th Cir. 2015) (footnotes omitted).

Revisiting Justice Thomas’s warning, this judge-made framework has

created confusion for at least one court and now seems poised to do so

for ours. See Ames, 605 U.S. at 313 (Thomas, J., concurring).

74 GIBSON V. CITY OF PORTLAND

the events at issue. Future courts applying the shotgun-

pleading rule apparently must evaluate issue-by-issue which

matters are appropriately resolved despite an invalid

pleading and which are not, and the majority gives them no

discernable standard for conducting that evaluation, other

than to say that “[i]t will require judgment.” Maj. Op. at 43.

I can only expect that district courts will brandish the

shotgun-pleading rule in a blunderbuss fashion, with

different courts and judges reaching unpredictable and

inconsistent results.

Finally, the majority suggests that its new rule can

improve efficiency “from a judicial policy perspective.”

Maj. Op. 44. Even if true, that concern is properly directed

to the Rules Committee and Congress. The “simplified

notice pleading standard” that Rule 8 codified “relies on

liberal discovery rules and summary judgment motions to

define disputed facts and issues and to dispose of

unmeritorious claims.” Swierkiewicz, 534 U.S. at 512. No

doubt efficiencies could be gained from narrowing the scope

of issues before discovery. But the Rules do not provide for

this except in narrow circumstances, e.g. Fed. R. Civ. P. 9(b),

the Supreme Court likewise has been circumspect about

establishing heightened pleading requirements, see Starr,

652 F.3d at 1213–15, and the prior regime of code pleading

shows the downsides of such attempts. We should not take it

upon ourselves to impose additional requirements to narrow

a dispute at the pleading stage simply because we think the

standard that Congress ratified is too permissive.

A key point of my disagreement with the majority

concerns who intends to benefit from Rule 8’s pleading

standard. I view this pleading standard as benefiting

responding parties, which is consistent with Rule 12(e)

giving only parties a tool for clarifying the pleadings. See

GIBSON V. CITY OF PORTLAND 75

Fed. R. Civ. P. 12(e). The majority, on the other hand, views

the pleading standard as also benefitting courts and that the

shotgun-pleading augmentation is necessary to “prevent[]

the needless expenditure of finite judicial resources.” Maj.

Op. 44.

The majority’s perspective overlooks that courts are in a

different position than parties when faced with uncertainty

in the pleadings. Courts need not save the parties from

themselves or waste resources making the pleadings into

something they are not. See Sineneng-Smith, 590 U.S. at

374–76, 379–80. As the Eleventh Circuit’s decision in

Anderson demonstrates, if a court is unable to fairly decide

a substantive issue because the pleadings are unclear, it can

say so and rule accordingly. See 77 F.3d at 368 (“The

consequence of our being unable to determine whether the

district court should have granted appellants immunity is that

we affirm the district court’s denial of immunity.”). And

when courts do this, the responding parties must live with

their choice to proceed with deficient pleadings and maybe

reassess their strategy. But either way, the court’s role is to

decide only the issues the parties present. See Sineneng-

Smith, 590 U.S. at 379–80; see also Clark, 607 U.S. ---, 2025

WL 3260170, at *1.

Ironically, sua sponte requiring repleading and

sidestepping the substantive issues on which the district

court granted dismissal makes this already complicated case

even more complicated, undermining Rule 1’s goals.

Consider the various grounds on which the district court

dismissed Plaintiffs’ complaint. The claims asserted against

the Prosecutor Defendants, except for Kalbaugh, were

dismissed with prejudice on immunity grounds. The claims

asserted against Multnomah County were dismissed because

the district court concluded, as we do, that the District

76 GIBSON V. CITY OF PORTLAND

Attorney’s Office and its employees are state actors, for

which the County is not responsible. And the claims asserted

against the City Defendants were dismissed as time-barred,

except that the district court held that Detective Traynor has

immunity for any claims arising out of his grand-jury

testimony and that Plaintiffs failed to state a claim for state-

law malicious prosecution against Traynor or the City.

The majority hardly acknowledges the district court’s

reasoning as to the County and City Defendants. Why?

Assuming Plaintiffs dutifully file an amended pleading on

remand that satisfies the new shotgun-pleading rule, the

district court is likely to dismiss at least some of Plaintiffs’

claims for the same reasons that it did initially. There is no

reason to think that the district court will evaluate these

substantive issues differently where the majority offers no

guidance on them.

As Justice Scalia put the point, “I am frankly not

enamored of any departure from our traditional adversarial

principles. . . . But if departure from traditional adversarial

principles is to be allowed, it should certainly not occur in

any situation where there is a risk that the patronized litigant

will be harmed rather than assisted by the court’s

intervention.” See Castro v. United States, 540 U.S. 375, 386

(2003) (Scalia, J., concurring in part and concurring in the

judgment). By sidestepping many of the substantive issues

on which Defendants prevailed, the majority returns them to

the pleading stage ostensibly because the complaint was too

opaque for them to adequately defend themselves.

Defendants didn’t think so. And this is precisely the type of

consequence that Justice Scalia recognized can result from

courts thinking they know what’s better for the parties than

the parties know themselves. As a result of the majority’s

decision today, the parties will spend more time and money

GIBSON V. CITY OF PORTLAND 77

only likely to be right back here in the future presenting the

same issues they are presenting now. The better practice—

and the practice dictated by the Federal Rules of Civil

Procedure—is to leave it to the parties to choose their own

pleading strategy and let the chips fall where they may.

B. Defendants’ Unaddressed Arguments

Because I would not resolve any aspect of this appeal on

the form of Plaintiffs’ pleading, I address the arguments that

Defendants raised against the claims asserted against the

City Defendants that the majority remands for repleading. 7

The district court dismissed Plaintiffs’ federal civil-rights

claims against the City Defendants as time-barred. It also

held that Detective Traynor is absolutely immune as relates

to the federal claims premised on his grand-jury testimony.

Finally, the district court dismissed Plaintiffs’ state

malicious-prosecution claims for failure to state a claim.

Relying on its shotgun-pleading analysis, the majority

remands so Plaintiffs can replead it claims against the City

Defendants. Plaintiffs are not entitled to a mulligan. I would

reverse the district court’s first holding on untimeliness and

affirm the latter two, allowing Plaintiffs to pursue their

malicious-prosecution theory—and only that theory.

7

As previously stated, I agree with the majority’s disposition of the

claims asserted against Multnomah County. And although I am skeptical

that Plaintiffs can allege facts against this defendant that are unrelated to

any actions or omissions taken by the Prosecutor Defendants where they

did not identify any such facts in the plethora of allegations asserted in

their First Amended Complaint, I nonetheless join the decision to allow

Plaintiffs the opportunity on remand to assert allegations directly related

to the County, if they can do so.

78 GIBSON V. CITY OF PORTLAND

1. Statutes of Limitations

Many of Plaintiffs’ allegations concern events that

occurred outside the relevant statutes of limitations. But in

their response to the City Defendants’ limitations defense,

Plaintiffs contend that their § 1983 claim is rooted in a

malicious-prosecution theory. So construed, Plaintiffs’

§§ 1983 and 1986 claims are timely because they accrued

only upon the state court’s dismissal of Plaintiffs’ criminal

charges. Plaintiffs’ conspiracy claims against the City

Defendants based on overt acts committed by any co-

conspirator within the limitations period are also timely.

a. Section 1983

We apply the forum state’s personal-injury statute of

limitations to § 1983 claims. See Butler v. Nat’l Cmty.

Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014).

Oregon’s applicable statute of limitations is two years. Or.

Rev. Stat. § 12.110(1); see also Sain v. City of Bend, 309 F.3d

1134, 1139 (9th Cir. 2002). Although the limitations period

turns on state law, claim accrual is governed by federal law.

See TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).

Most of the City Defendants’ allegedly unlawful acts

occurred in 2019 or earlier, but Plaintiffs did not file suit

until 2023. Plaintiffs do not dispute this. Instead, they argue

that their § 1983 claims against these Defendants are

“grounded in malicious prosecution” and this claim did not

accrue until the criminal charges against them were

dismissed in 2022. Plaintiffs are correct.

A necessary element of malicious-prosecution grounded

in the Fourth Amendment is the acquittal or discharge of the

accused. See Thompson v. Clark, 596 U.S. 36, 44 (2022).

Here, that did not occur until 2022, which means Plaintiffs’

GIBSON V. CITY OF PORTLAND 79

claim asserted in 2023 is timely. See Cabrera v. City of

Huntington Park, 159 F.3d 374, 382 (9th Cir. 1998) (per

curiam); accord Nieves v. McSweeney, 241 F.3d 46, 53 (1st

Cir. 2001) (“[A] cause of action for malicious prosecution

does not accrue until the termination of the criminal

proceedings.”).

The City Defendants protest that Plaintiffs’ complaint

did not assert a § 1983 claim based on malicious

prosecution. 8 But a plaintiff does not forever bind himself to

the legal theories he articulates in his complaint. See Wright

& Miller § 1219 (“[T]he federal rules—and the decisions

construing them—evince a belief that when a party has a

valid claim, he should recover on it regardless of his

counsel’s failure to perceive the true basis of the claim at the

pleading stage . . . .”). For example, we have allowed a

plaintiff who alleged only First Amendment violations to

proceed with statutory claims that were advanced in post-

pleading filings. See Alvarez v. Hill, 518 F.3d 1152, 1157–58

(9th Cir. 2008). Accordingly, because Plaintiffs alleged facts

supporting a malicious-prosecution theory and advanced this

theory in the district court, I would reverse the district court’s

dismissal of Plaintiffs’ § 1983 claim against the City

Defendants.

There are two caveats. First, in deciding whether to allow

new legal theories, we must consider whether the change

will prejudice the defendant. See Mir v. Fosburg, 646 F.2d

342, 347 (9th Cir. 1980); Wright & Miller § 1219. Rarely

will a change this early in the proceedings be so prejudicial

that dismissal is the appropriate remedy. See United States v.

Howell, 318 F.2d 162, 166 (9th Cir. 1963) (“A ‘complaint is

not to be dismissed because the plaintiff's lawyer has

8

The district court did not take up this issue.

80 GIBSON V. CITY OF PORTLAND

misconceived the proper legal theory of the claim.’” (citation

omitted)); Wright & Miller § 1219 (listing the district court’s

tools to avert prejudice). But the City Defendants’ objection

that the complaint led them to focus on constitutional

violations other than malicious prosecution is well taken.

With Plaintiffs now focusing this claim on malicious

prosecution to avoid the time bar, nothing forecloses the City

Defendants from challenging this claim on the pleadings on

other grounds, if they exist.

Second, even if Plaintiffs are not bound to their initial

legal theories, ordinary rules of forfeiture still apply. See

Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th Cir. 1996)

(declining to consider claims referenced in a complaint when

they were not argued by the plaintiffs on appeal). The City

Defendants argued that Plaintiffs’ § 1983 claim was time-

barred, and Plaintiffs disputed this insofar as they alleged

malicious prosecution. Malicious prosecution is a distinct

constitutional tort grounded in the Fourth Amendment. See

Chiaverini v. City of Napoleon, 602 U.S. 556, 558 (2024). It

appears from Plaintiffs’ complaint that they wanted to press

other constitutional torts—for example, First Amendment

retaliatory arrest. See Nieves v. Bartlett, 587 U.S. 391, 401

(2019) (describing the elements of that claim). But where

they raised no argument on timeliness other than as to

malicious prosecution, I would hold that Plaintiffs have

forfeited any other theory. Crime Just. & Am., Inc. v. Honea,

876 F.3d 966, 978–99 (9th Cir. 2017). Accordingly, even

though I would allow Plaintiffs to proceed with their

malicious-prosecution theory, I would not permit them to

pursue any other constitutional torts that they failed to

establish were timely in response to the City Defendants’

motion to dismiss.

GIBSON V. CITY OF PORTLAND 81

b. Section 1985

Section 1985 imposes civil liability for conspiring to

deprive individuals of their civil rights. See 42 U.S.C.

§ 1985. The limitations period for this claim is the same as

for a § 1983 claim. See McDougal v. County of Imperial, 942

F.2d 668, 673–74 (9th Cir. 1991). So once again, any claims

that accrued more than two years before Plaintiffs filed this

lawsuit are untimely. The City Defendants argue that

because all their alleged conduct occurred more than two

years before Plaintiffs filed suit, the § 1985 claim is time-

barred. Plaintiffs counter that, under our last-overt-act

doctrine, their § 1985 claim is timely. See Gibson v. United

States, 781 F.2d 1334, 1340 (9th Cir. 1986). Plaintiffs are at

least partially correct, and I would allow their § 1985 claim

to proceed.

The last-overt-act doctrine is based on the premise that

“injury and damage in a civil conspiracy flow from the overt

acts, not from the mere continuance of a conspiracy.” Id.

(citation modified). Accordingly, a civil-conspiracy statute

of limitations “runs separately from each overt act that is

alleged to cause damage to the plaintiff.” Evidence outside

the limitations period may satisfy other elements of a

conspiracy claim. See United States v. Chhun, 744 F.3d 1110,

1122 (9th Cir. 2014). That is, Plaintiffs may point to pre-

2021 events as evidence that the City Defendants joined the

conspiracy, but they may only base liability on overt acts that

occurred within the limitations period.

While none of the City Defendants’ alleged overt acts

occurred within the limitations period, these Defendants

82 GIBSON V. CITY OF PORTLAND

misapprehend the nature of conspiracy liability in

concluding they are home free. As we have long held,

[i]f sufficient allegations appear of the acts of

one defendant among the conspirators,

causing damage to plaintiff, and the act of the

particular defendant was done pursuant to the

conspiracy, during its course, in furtherance

of the objects of the conspiracy . . . then all

defendants are liable for the acts of the

particular defendant under the general

principle of agency on which conspiracy is

based.

Hoffman v. Halden, 268 F.2d 280, 295–96 (9th Cir. 1959)

(emphasis added), overruled in part on other grounds by

Cohen v. Norris, 300 F.2d 24, 29–30 (9th Cir. 1962). Even if

the City Defendants may not be held liable for their own

untimely overt acts occurring before 2021, they may be

liable for the timely overt acts of their co-conspirators. That

is one goal of conspiracy liability. See id.; Rieves v. Town of

Smyrna, 67 F.4th 856, 863 (6th Cir. 2023). And accepting

Plaintiffs’ factual allegations as true, at least some of the co-

conspirators’ overt acts, including the 2022 trial pressed by

the Prosecutor Defendants, occurred within the limitations

period. Because the City Defendants do not present any

additional reason for why they may not be held liable for

conspiracy under § 1985, Plaintiffs should be allowed to

pursue this claim against the City Defendants insofar as

liability is premised on the timely overt acts of any member

of the alleged conspiracy.

GIBSON V. CITY OF PORTLAND 83

c. Section 1986

Section 1986 creates a cause of action against defendants

that knew of a § 1985 conspiracy, had the power to stop it,

and did not. A plaintiff has one year to bring a § 1986 action

from the time it accrues. See 42 U.S.C. § 1986. This claim

accrues “when the plaintiff knows or has reason to know of

the injury which is the basis of the action.” Lukovsky v. City

& County of San Francisco, 535 F.3d 1044, 1046, 1048 (9th

Cir. 2008) (citation omitted). Where the §§ 1983 and 1986

accrual standards are the same, see TwoRivers, 174 F.3d at

991, and where § 1983 malicious-prosecution claims accrue

at the time of acquittal or dismissal, see supra Part B.2.a.i,

that also must be the moment § 1986 claims based on

malicious prosecution accrue. So again, this claim is timely

because the state court dismissed the charges against

Plaintiffs within one year of their filing this lawsuit.

The district court held, and the City Defendants

maintain, that because Plaintiffs did not allege any acts or

omissions by the City Defendants that occurred within one

year of the lawsuit being filed, the claim is untimely. That

was error. Lukovsky makes clear that timeliness for this claim

is not based on when the defendant’s challenged act or

omission occurred; it is when the plaintiff obtained

knowledge, actual or constructive, of the injury suffered

from the defendant’s challenged acts or omissions. 535 F.3d

at 1046, 1048. As discussed, that occurred when the charges

against Plaintiffs were dismissed.

2. State-Law Malicious Prosecution

The district court dismissed Plaintiffs’ state-law

malicious-prosecution claim against the City Defendants

without prejudice because Plaintiffs did not sufficiently

allege that these parties instituted, continued, or had an

84 GIBSON V. CITY OF PORTLAND

active role in Plaintiffs’ prosecution. I would affirm that

dismissal.

Among other requirements, a malicious-prosecution

plaintiff must prove that criminal proceedings were initiated

or continued “by or at the insistence of the defendant.” Rose

v. Whitbeck, 562 P.2d 188, 190 (Or. 1977). A defendant need

not “personally or single-handedly institute the criminal

proceeding” but it must have at least “urged or insisted that

another” do so. Id. at 190–91. However, if a prosecutor

decides to bring charges “after an independent investigation

and in the exercise of his independent discretion,” that

supplants others’ liability. Id. at 191. To overcome this

hurdle, the plaintiff must prove that the prosecutorial

decision was not truly independent because it was based on

false representations by the defendant, or that the

defendant’s outside pressure was “the determining factor” in

the prosecutor’s decision to press charges. Id. at 192 (citation

omitted).

Here, the District Attorney’s Office decided to prosecute

Plaintiffs. Plaintiffs alleged that the prosecution was

“undertaken following pressure from the Mayor and Police

Chief.” They likewise argue on appeal that Portland’s mayor

and police commissioner pressured the District Attorney’s

Office to prosecute Plaintiffs because of their unpopular

beliefs. Asserting that City actors exerted pressure is not the

same as asserting that such pressure was “the determining

factor” in the decision to prosecute. Id. (citation omitted).9

9

In their reply brief, Plaintiffs briefly argue that Detective Traynor

supplied false information to the District Attorney’s Office. Because

Plaintiffs did not contest the district court’s dismissal of their state-law

malicious-prosecution claim against Detective Traynor in their opening

GIBSON V. CITY OF PORTLAND 85

This latter assertion is what Oregon law requires, and

Plaintiffs’ allegations do not meet this requirement.

Plaintiffs observe that “the presumption of prosecutorial

independence” does not undermine a federal malicious-

prosecution claim against “local officials who improperly

exerted pressure on the prosecutor.” See Awabdy v. City of

Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004). That may

bode well for Plaintiffs’ federal claim. But Oregon need not

model its malicious-prosecution law on the federal analog. 10

*****

Plaintiffs undoubtedly made this case more complicated

by how they chose to plead their claims. But Defendants

chose to focus on substantive deficiencies in Plaintiffs’

pleading. We should have decided those issues, as the district

court did, rather than stepping outside our proper role in the

adversarial system to sua sponte adopt the shotgun-pleading

rule, which itself is at odds with the adversarial principles

embedded in the Federal Rules of Civil Procedure.

Therefore, I respectfully dissent in part.

brief, this issue is forfeited. See Barnes v. FAA, 865 F.3d 1266, 1271 n.3

(9th Cir. 2017).

10

Compare, e.g., Rose, 562 P.2d at 190 (requiring the plaintiff to prove

malice), with Thompson, 596 U.S. at 44 n.3 (reserving the question of

whether a plaintiff must show malice as part of a federal malicious-

prosecution claim); see also Berger v. N.C. State Conf. of the NAACP,

597 U.S. 179, 183 (2022) (“Within wide constitutional bounds, States

are free to structure themselves as they wish.”).