Opinion
3:20-cv-2067-JR
09-22-2021
BARRY JOE STULL, Plaintiff, v. JAKOB BUETLER, et al., Defendants.
FINDINGS & RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Pro se plaintiff, Barry Stull, brings this action alleging a violation of the Americans with Disabilities Act (ADA) and his civil rights. Plaintiff's broadly targeted complaint asserts claims against 43 defendants involved in the treatment of his chronic pain condition from 2002 onward as well as various law enforcement and security personnel. Defendants filed 11 motions to dismiss which are addressed in order below.
A. Defendant Portland Adventists Medical Center
Plaintiff alleges that on May 26, 2020, he presented at the Adventist Health emergency department experiencing a flare of central pain syndrome where a doctor told him he had never heard of central pain syndrome. Complaint (ECF 1 at p. 40 41. Plaintiff “told staff he'd give them some time to access [his] medical records and would return shortly.” Id. at p. 41. When plaintiff returned, he alleges three security guards approached him, told him to leave, and escorted him out of the building. Id.
Plaintiff alleges he returned to the Adventists emergency department a third time and told security guards he was a registered patient. However, one of the security guards issued plaintiff a “Trespass Exclusion Notice.” Plaintiff alleges he then again registered as a patient at the emergency department while the three guards “continued to crowd” him worsening his central pain syndrome. Id.
After again being admitted to the emergency department, plaintiff alleges he asked defendant security guard Mario Lara “Can I punch you in the nose now?” Plaintiff asserts Lara replied yes and so plaintiff punched Lara three times. Id. Plaintiff alleges the three security guards then took him down to the ground, handcuffed him, and took him outside where defendants Portland Police Officers Scherise Hobbs and Thomas Clark were informed that plaintiff punched Lara after obtaining permission. Id. at pp. 41-42. Plaintiff alleges he was then taken into custody, booked into the Multnomah County, Oregon Detention Center and did not receive treatment for his central pain syndrome. Id., at p. 42.
Defendant Adventists Medical Center moves to dismiss plaintiff's claims asserting plaintiff failed to plead a plausible claim under 42 U.S.C. § 1983 or the ADA, and for improper service.
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
Thus, to state a claim for relief under Section 1983, plaintiff must allege first, the violation of a right secured by the Constitution or laws of the United States; and second, that the alleged deprivation was committed or caused by a person acting under color of law. West v. Atkins, 487 U.S. 42, 48 (1988). Here, while plaintiff refers to his rights under the First, Fourth, Sixth, and Fourteenth Amendments, he fails to specifically allege what rights defendant Adventists violated. More importantly, plaintiff fails to identify any acts under color of law given that there are no facts alleged to suggest Adventists Medical Center or its employees are state actors.
Although private individuals are not state actors, such individuals can be liable for civil rights violations under Section 1983 if they have conspired or engaged in joint activity with state actors. Briscoe v. LaHue, 460 U.S. 325, 330 n. 7 (1983); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). Joint action with a state official can be found only if it is shown that the private individual acted in “willful collaboration” with a state actor to deprive the plaintiff of a federal right. Bacquie v. City of New York, 2000 WL 1051904 *1 (S.D.N.Y.2000). Plaintiff must allege more than “conclusory allegations” or “naked assertions” in this regard. See, e.g., id. Thus, pleadings asserting joint activity must allege “specific facts tending to show agreement and concerted action.” Id.
Moreover, stating a Section 1983 conspiracy claim against a private individual requires more than pleading in a conclusory fashion that the defendant “conspired” with state actors. Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). Rather, plaintiff must allege: “(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Pacicca v. Stead, 456 Fed.Appx. 9, 12 (2d Cir. 2011). Merely providing information to law enforcement, even if that information is false or mistaken, does not render the supplier of information a state actor. E.g., Johns v. Home Depot U.S.A., Inc., 221 F.R.D. 400, 405 (S.D.N.Y. 2004). Because plaintiff does not allege a violation of his constitutional rights by defendant Adventist, under color of law, his Section 1983 claim against Adventists should be dismissed.
In addition, defendant Adventists, assuming state action, cannot be liable under Section 1983 for the acts of its employees. Under Section 1983, each defendant, whether a public entity or an individual person, is liable only for its “own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); see also Connick v. Thompson, 563 U.S. 51, 60 (2011). Accordingly, an entity may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior. See Board of Cty. Comm'rs. of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997).
2. ADA
Title III of the ADA prohibits disability discrimination in places of public accommodation. 42 U.S.C. § 12182(a). An individual alleging discrimination under Title III must show that: (1) he is disabled as that term is defined by the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; (3) the defendant employed a discriminatory policy or practice; and (4) the defendant discriminated against the plaintiff based upon the plaintiff's disability by (a) failing to make a requested reasonable modification that was (b) necessary to accommodate the plaintiffs disability. Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004). If the plaintiff makes such a showing, the defendant must make the requested modification unless it proves that doing so would alter the fundamental nature of its business. Id.
A hospital is a place of public accommodation. 42 U.S.C. § 12181(7)(F).
To have standing to bring an ADA claim, plaintiff must show that he has suffered an injury in fact, that the injury is traceable to the challenged action of Adventist, and that the injury can be redressed by a favorable decision. Id. at 1081. Because the only remedy available under Title III of the ADA is injunctive relief, plaintiff must also show a sufficient likelihood that he will again be wronged in a similar way. Id.
Molski v. Mandarin Touch Rest., 347 F.Supp.2d 860, 862 (C.D. Cal. 2004), affd in part, dismissed in part sub nom. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007).
Plaintiff fails to allege facts to plausibly demonstrate violation of Title III of the ADA by defendant Adventist. Accordingly, the ADA claim against Adventist should also be dismissed.
3. Service
Defendant Adventists demonstrates that service upon it was accomplished personally by plaintiff. (ECF 15-1). However, service by plaintiff is improper. Fed.R.Civ.P. 4(c)(2) (Service may be accomplished by any person who is at least 18 years old and not a party).
“A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed.R.Civ.P. 4.” Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir.1988). When service is challenged, the plaintiff bears the burden of establishing sufficiency of service under Fed.R.Civ.P. 4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.2004)). “Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint.” United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.1984). “However, neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction without substantial compliance with Rule 4.” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986), cert. denied, 484 U.S. 870 (1987) (citation omitted). Because plaintiff's service was improper, service should be quashed. However, the Court should give plaintiff an opportunity to cure the defect by service through a private process server. If plaintiff seeks to submit an amended complaint curing the defects noted above with respect to the claims against defendant Adventist, he must also properly accomplish service and, if necessary, seek an extension of time in which to do so. The Court should decline to dismiss the complaint on this basis at this time.
B. Defendant Clackamas County and Robert Stewart
Plaintiff alleges that on November 9, 2018, he was approached by an intoxicated man who attacked him; he then boarded a TriMet bus and took an “Honored Citizen” seat where another person threatened him because of his disability. Complaint (ECF 1) at p. 35. Plaintiff alleges he then “effected a citizen's arrest of defendant Kyle Dean Sheppard.” Id. Plaintiff alleges the TriMet driver, defendant Joseph Witt took no action while plaintiff waited for defendant Portland Police officer Daniel Nipper who also failed to investigate, but ultimately handcuffed plaintiff. Id. at p. 36.
Plaintiff alleges defendant Tigard Police Officer Gabriel Maldonado then transported plaintiff from the bus to the Multnomah County Detention Center. Plaintiff asserts he warned Maldonado that his central pain syndrome had been triggered, but that Maldonado choked him with the seatbelt as he pulled plaintiff from the car and threw him to the ground. Id. at p. 37. Plaintiff alleges his injuries from the incident were so serious that defendant Clackamas County Sheriff's Sergeant Robert Stewart took photographs and “knew [plaintiff] had done nothing to merit the response experienced nor injuries sustained.” Id. Plaintiff alleges Maldonado and Stewart then “concocted a cover-up, and defendant Stewart said there were no photographs of [plaintiff's] shoulder although photographs were taken on November 9, 2018 along with the other photographs of [plaintiff's] injuries.” Id.
Defendants Clackamas County and Stewart move to dismiss contending plaintiff lacks standing to bring this action against them, and any purported claims are beyond the statute of limitations.
1. Standing
As noted above, “[T]o satisfy Article III's case or controversy requirement, [plaintiff] needs to show that [ ]he has suffered an injury in fact, that the injury is traceable to the challenged action of [defendants Clackamas County and Stewart], and that the injury can be redressed by a favorable decision.” Bird v. Lewis & Clark College, 303 F.3d 1015, 1019 (9th Cir.2002), cert. denied, 538 U.S. 923 (2003). In addition, standing to seek injunctive relief under an ADA claim requires that plaintiff show a sufficient likelihood that he will again be wronged in a similar way. Fortyune, 364 F.3d at 1081.
The allegations against defendants Clackamas County and Stewart do not sufficiently allege an injury resulting from their conduct. Indeed, the complaint fails to allege facts plausibly demonstrating the elements of either a Section 1983 claim or an ADA claim. In addition, plaintiff fails to allege a likelihood that the alleged conduct will occur again. Accordingly, the claims against defendants Clackamas County and Stewart should be dismissed.
Presumably plaintiff seeks relief under Title II of the ADA with respect to these defendants which prohibits disability discrimination with respect to benefits of services, programs, or activities of a public entity. 42 U.S.C. § 12132. To prevail on such a claim, plaintiff must show (1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefits of services, programs, or activities of the County; and (3) he was denied the benefits, services, or programs solely by reason of his disability. Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh'g (Oct. 11, 2001).
“Title II of the ADA does not contain an express statute of limitations.” Sharkey v. O'Neal, 778 F.3d 767, 770 (9th Cir.2015). Accordingly, the court “borrow[s] the statute of limitations applicable to the most analogous state-law claim.” Id. Although the complaint is unclear as to the scope of plaintiff's claim given the dearth of allegations against these defendants the most analogous claim limitations period appears to be that provided under Or. Rev. Stat. § 12.110(1) which is two years. See VanValkenburg v. Oregon Dep't of Corr., 2016 WL 2337892, at *8 (D. Or. May 2, 2016) (the Court agrees section 12.110(1) applies to the ordinary Title II case). For purposes of his Section 1983 claim, the applicable limitations period is also two years. See Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002) (Oregon's two-year statute of limitations for personal injury actions applies to actions under 42 U.S.C. § 1983).
2. Statute of Limitations
The alleged conduct by Stewart and, apparently, Clackamas County giving rise to the action against them occurred on November 9, 2918. Plaintiff initiated this action on November 30, 2020, more than two years after the conduct alleged to have violated the ADA and plaintiff's civil rights occurred. Accordingly, the claims against defendants Clackamas County and Stewart should be dismissed for this reason as well.
Plaintiff appears to attempt to extend the statute of limitations to actions occurring back to 2015 against all defendants asserting he continues to face criminal charges in Multnomah County. See Response (ECF 57) at p. 6. However, designating a series of discrete acts, even if connected in design or intent, a “continuing tort” cannot be a rationale by which the statute of limitations policy can be avoided, i.e., a cause of action does not re-accrue every time another distress is inflicted. Davis v. Bostick, 282 Or. 667, 674, 580 P.2d 544, 548 (1978).
C. Defendants City of Portland, Daniel Nipper, Neil Martin, Bryan Wells, Thomas Clark, Todd Engstrom, Roger S. Axthelm, Gerald Fink Jr., Scherise Hobbs, and West Helfritch
As noted above, plaintiff brings this action alleging he suffers from central pain syndrome, has experienced discrimination based on this purported disability, and a violation of his civil rights from large swaths of public law enforcement and medical providers within the Portland, Oregon area. The allegations against the City of Portland defendants are summarized as follows:
On November 22, 2015, plaintiff called 911 and stated that he needed to go to the hospital due to his central pain syndrome. Paramedics arrived and an argument ensued between plaintiff and those paramedics. The paramedics called the police, and Portland Police Bureau officers as well as Portland Fire Bureau paramedics arrived on the scene. Plaintiff alleges he was ultimately restrained via handcuffs and chemical restraints. Complaint (ECF 1) at pp. 15-18.
On November 24, 2015, plaintiff was involved in an altercation on a TriMet bus. A Portland Police Bureau Officer responded. The Officer did not end up taking anyone into custody or writing a report regarding the incident. Later that day, plaintiff went to Portland City Hall and asked for medical transport to his home. When plaintiff remained in City Hall and continued behavior the City characterized as disruptive and distracting to City Hall employees, G4S security officers issued plaintiff a 24-hour exclusion from City Hall. Id. at pp. 22-25; Exhibit F at p. 1.
On November 25, 2015, plaintiff returned to City Hall and caused a disruption in the Council Chambers prior to a City Council meeting, causing a delay in the meeting. Portland Police as well as an ambulance responded to the scene, and plaintiff engaged in a physical altercation with the Police Officers. Police arrested plaintiff. Later, the City of Portland issued plaintiff a permanent exclusion from City Hall. Complaint at pp. 25-30; Exhibit F.
On November 9, 2018, plaintiff was involved in an altercation on a TriMet bus. Members of the Portland Police Bureau Transit Division responded, and a Portland Police Bureau Officer arrested plaintiff. A City of Tigard Police Officer then transported plaintiff to the Multnomah County Detention Center. Complaint at pp. 35-37.
On May 22, 2020, plaintiff was arrested by the Portland Police Bureau Id. at p. 40.
On May 26, 2020, plaintiff punched a person at the Adventist Health Portland Emergency Department. Portland Police Bureau Officers responded to the scene and authored a report that plaintiff characterized as inaccurate. Id. at pp. 40-43.
On May 28, 2020, a Portland Police Bureau Officer responded to plaintiff's home to conduct a welfare check. The Officer called an ambulance and plaintiff was taken to Adventist Hospital. Id. at p. 43.
On June 4, 2020, plaintiff was involved in an altercation at Floyd Light Park. Portland Police Bureau responded, arrested plaintiff, and then transported him to Multnomah County Detention Center. Plaintiff alleges that the Portland Police Bureau driver drove quickly over speed bumps in the Floyd Light Middle School parking lot which caused bruises to the back of plaintiff's legs. Id. at pp. 44-45.
Defendants City of Portland, Daniel Nipper, Neil Martin, Bryan Wells, Thomas Clark, Todd Engstrom, Roger S. Axthelm, Gerald Fink Jr., Scherise Hobbs, and West Helfritch (City defendants) move to dismiss plaintiff's claims asserting a statute of limitations bar, failure to plead facts sufficient to state a claim under either Section 1983 or the ADA, and a lack of standing to seek injunctive relief. Defendant Ryan Klostermann joins in the motion.
As noted above, any conduct occurring prior to November 30, 2018, is barred by the applicable statute of limitations. The Section 1983 claims against defendants Bryan Wells, Gerald Fink, Ryan Klostermann, and Neil Martin, who were present at plaintiff's arrest on November 22, 2015 (Complaint, at p. 15); West Helfrich who responded to the incident involving plaintiff on November 24, 2015 (Complaint, at p. 22); Roger Axthelm and Todd Engstrom who arrested plaintiff later on November 24, 2015 (Complaint, at p. 27); Bryant Enge who issued plaintiff the City Hall exclusion on December 1, 2015 (Complaint, Exhibit F); and Daniel Nipper who responded to the incident involving plaintiff on November 9, 2018 (Complaint, at p. 36) should be dismissed.
The remaining allegations involve Portland Police Officers, Scherise Hobbs and Thomas Clark, who on May 26, 2020, responded to a call involving plaintiff and took a police report that plaintiff characterized as inaccurate; and on June 4, 2020, two unidentified Portland Police Bureau officers who drove at a high rate of speed over speed bumps after arresting plaintiff.
As noted above, to state a Section 1983 claim, plaintiff must allege, first, the violation of a right secured by the Constitution or laws of the United States and, second, that the alleged deprivation was committed or caused by a person acting under color of law. West v. Atkins, 487 U.S. 42, 48 (1988). Moreover, each defendant is liable only for his “own misconduct.” Ashcroft, 556 U.S. at 677. Accordingly, a public entity may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior. See Board of Cty. Comm'rs. of Bryan Cty., 520 U.S. at 403 (1997). Accordingly, to allege liability against the City of Portland, plaintiff must allege that the action inflicting injury flowed from either an explicitly adopted or a tacitly authorized City policy. Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91 (1978).
Plaintiff offers a conclusory allegation that the City has a policy or practice of “interfering with or refusing emergency medical treatment or of transportation in violation of the ADA standards governing policies and practices on the basis of a ‘direct threat' without first affording the required interactive process and resulting reasonable modifications required by the ADA and similar Oregon statutes and Oregon Administrative Rules.” Complaint at pp. 51-52. Plaintiff offers the further conclusion that “Portland Police Bureau continued their practice of not investigating crimes when Stull was the victim, and not securing security video containing evidence Stull was a crime victim.” Id. at p. 22.
Absent a formal governmental policy, [plaintiff] must show a “longstanding practice or custom which constitutes the standard operating procedure of the local government entity.” Gillette, 979 F.2d at 1346-47. The custom must be so “persistent and widespread” that it constitutes a “permanent and well settled city policy.” Monell v. Dept. of Soc. Serv. of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir.1984); see also, Meehan v. Los Angeles County, 856 F.2d 102 (9th Cir.1988) (two incidents not sufficient to establish custom); Davis v. Ellensburg, 869 F.2d 1230 (9th Cir.1989) (manner of one arrest insufficient to establish policy).Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), holding modified by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001).
There are no facts alleged from which it could be plausibly inferred that they City had a policy or practice that resulted in the violation of plaintiff's civil rights. Accordingly, the Section 1983 claims against the City should be dismissed.
The remaining conduct of individual defendants Scherise Hobbs and Thomas Clark, who on May 26, 2020, responded to a call involving plaintiff and took a police report that plaintiff characterized as inaccurate; and on June 4, 2020, two unidentified Portland Police Bureau officers who drove at a high rate of speed over speed bumps after arresting plaintiff also fails to plausibly allege a violation of plaintiff's First, Fourth, Sixth, or Fourteenth Amendment rights.
To establish a First Amendment Claim, plaintiff must show that (1) he was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity[, ] and (3) the protected activity was a substantial or motivating factor in the defendant's conduct. Flynn v. City of Santa Clara, 388 F.Supp.3d 1158, 1164 (N.D. Cal. 2019). There are no facts alleged that would plausibly establish entitlement to relief for such a claim.
The Fourth Amendment protects people from unreasonable searches and seizures. See U.S. Const. amend. IV; Cameron v. Craig, 713 F.3d 1012, 1021 (9th Cir.2013) (citation omitted). The Fourth Amendment, however, “does not proscribe all state-initiated ... seizures; it merely proscribes those which are unreasonable.” United States v. Willis, 431 F.3d 709, 714 (9th Cir.2005) (citation and internal quotation marks omitted). Under the Fourth Amendment, a police officer may arrest a person without a warrant if the officer has probable cause to believe the person has committed a crime. Id. “Probable cause” exists if the available facts suggest a “fair probability” that the suspect has committed a crime. Tatum v. City and Cnty. of S.F., 441 F.3d 1090, 1094 (9th Cir.2006) (citation omitted). To determine whether an officer had probable cause at the time of a plaintiff's arrest, the court must determine “whether at that moment the facts and circumstances within [his] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [plaintiff] had committed or was committing an offense.” Beck v. State of Ohio, 379 U.S. 89, 91 (1964) (citations omitted). To the extent, plaintiff basis his claim on a lack of probable cause, he fails to plead facts to establish such a claim.
Assuming plaintiff bases his Fourth Amendment claim on excessive force, to prevail on such a claim, plaintiff must plead (1) the defendants used force against the plaintiff; (2) the use of such force was excessive and applied maliciously and sadistically for the very purpose of causing the plaintiff harm and not in a good faith effort to achieve a legitimate purpose; and (3) the plaintiff suffered harm as a direct result of this use of force. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Plaintiff fails to allege facts that plausibly establish such a claim.
For purposes of his Sixth Amendment claim, there are no allegations these defendants plausibly demonstrated substantial prejudice to plaintiff's right to counsel. Kocontes v. Orange Cty. Sheriff's Dep't, 2020 WL 9071688, at *3 (C.D. Cal. Dec. 30, 2020).
A Fourteenth Amendment procedural due process claim has two elements: “deprivation of a constitutionally protected liberty or property interest and denial of adequate procedural protection.” Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 970 (9th Cir.2010). Plaintiff does not allege what right defendants deprived him of or what procedural safeguards they failed to provide.
To prevail in a Section 1983 action on a Fourteenth Amendment substantive due process claim on a state-created danger theory, plaintiff must establish the following four elements: (1) the harm ultimately caused was foreseeable and direct; (2) the state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state's actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Taylor v. Altoona Area School Dist., 737 F.Supp.2d 474 (W.D. Pa. 2010). Plaintiff has not plausibly alleged these elements. Accordingly, plaintiff's Section 1983 claim against the City defendants and defendant Klostermann should be dismissed.
2. ADA Claim
Individual defendants are not subject to a Title II ADA claim. Only public entities are subject to Title II. City & County of San Francisco v. Sheehan, 575 U.S. 600, 610 (2015). Accordingly, the ADA claims against the individual City defendants and defendant Klostermann should be dismissed.
In addition, most of the conduct alleged against the City defendants is time-barred as beyond the two-year statute of limitations. To plead a Title II ADA claim, plaintiff must allege facts showing: (1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefits of services, programs, or activities of the City; and (3) he was denied the benefits, services, or programs solely by reason of his disability. Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh'g (Oct. 11, 2001). Although it is unclear if “central pain syndrome” qualifies as a disability for purposes of a Title II claim, plaintiff has not alleged facts plausibly suggesting denial of any services or benefits solely by reason of his central pain syndrome. Accordingly, the ADA claim against the City should be dismissed.
The City also seeks dismissal of claims for punitive damages which are not permitted under 42 U.S.C. § 1983 or the ADA. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (a municipality is immune from punitive damages under 42 U.S.C. § 1983); Barnes v. Gorman, 536 U.S. 181, 189 (2002) (punitive damages may not be awarded in private suits brought under § 202 of the ADA). Should any claims survive, the motion to dismiss punitive damages against the City should be granted.
D. Defendant Mario Lara
As noted above, plaintiff alleges that on May 26, 2020, he presented at the Adventist Health emergency department experiencing a flare of central pain syndrome where he encountered security guards which eventually escalated to him punching security guard Mario Lara. The three security guards then took plaintiff down to the ground, handcuffed him, and took him outside where defendants Portland Police Officers Scherise Hobbs and Thomas Clark were informed that plaintiff punched Lara after obtaining permission. Plaintiff alleges he was then taken into custody, booked into the Multnomah County, Oregon Detention Center and did not receive treatment for his central pain syndrome. Complaint (ECF 1) at pp. 40-43.
As with defendant Adventists, Lara is not alleged to have acted under color of law. Accordingly, the Section 1983 claim against defendant Lara should be dismissed.
Plaintiff has failed to allege standing to seek injunctive relief under the ADA. Moreover, plaintiff does not allege Lara is subject to Title III of the ADA which prohibits disability discrimination by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). The allegations establish Lara is a security guard at Adventists, not the owner, lessee/lessor, or operator of Adventists Medical Center. Accordingly, plaintiff's ADA claim should be dismissed against defendant Lara as well.
Finally, defendant Lara notes that he was not personally served with the summons and complaint and that service was accomplished by delivery to “HIM Dept.” of Adventists Hospital by plaintiff personally. Service was improper and therefore is quashed. See Fed.R.Civ.P. 4(c). Although it appears defendant Lara cannot be a proper defendant to this action, should plaintiff seek to amend to cure the deficiencies in the allegations against defendant Lara, he must properly serve him and seek leave to do so if necessary.
E. Defendant Multnomah County, Joey De Armond-Reid, and Keiko Eguchi
Plaintiff alleges Defendant Multnomah County Sheriff Mike Reese kept him in custody in the same cell from November 10, 2018 through November 29, 2018. Complaint (ECF 1) at p. 37. Plaintiff alleges he refused to participate in a misconduct hearing because he was too sick with central pain syndrome and he did not appeal the adverse decision because he could not access the proper forms to lodge an appeal. Id. at p. 38.
Plaintiff asserts that on November 20, 2018, deputies “turned off” his drinking water, refused to facilitate toilet flushing, and fed him sack lunches without the milk that other inmates received. Id. Plaintiff then notes that on that same day, Multnomah County Sheriff's deputy Roldan rectified the water situation, and that plaintiff “gave him a bag of his own feces for which he received a receipt.” Id.
Plaintiff alleges he was given a “misconduct issuance” on November 21, 2018 regarding sexually explicit statements falsely attributed to him. Id. at p. 39. Plaintiff further alleges that on November 26, 2018:
defendant Hearings Officer De Armond-Reid completed a Misconduct Hearing Report wherein he falsely reported Stull as saying, "I have kyted the facility Commander," when Stull instead reported having been locked in the cell continuously without an opportunity to communicate with anyone.Id.
Plaintiff also alleges defendant Keiko Eguchi, a mental health and addiction services investigator produced a report containing falsehoods about plaintiff and wrote “when Stull explained central pain syndrome, ‘AMIP [Alleged Mentally Ill. Person] appeared manic with psychotic features, though adamantly denied that he has any mental health conditions other than central pain, which he explained in a fashion that sounds like a somatic delusion.'” Id. at p. 46. Plaintiff asserts Eguchi did not investigate sufficiently to understand that “central pain syndrome” was plaintiff's “well-diagnosed neurological disease.” Id. Plaintiff further alleges that on June 6, 2020, Eguchi wrote
returned to Unity on Director's Designee hold from jail because AMIP [Alleged Mentally Ill. Person] was acutely psychotic, inability to care for self, inability to provide for basic needs due to disturbance in thought and perception, is grossly disoriented, cannot communicate, nonsensical speech, severe paranoid causing aggressive behaviors and ideation which is further exacerbated by chronic methamphetamine use per Corrections Health Mental Health Consultant."Id. at pp. 46-47.
Plaintiff asserts there is no foundation for chronic methamphetamine use. Id. at p. 47.
As noted above, all actions occurring prior to November 30, 2018 are not actionable as they fall outside the state of limitations. Accordingly, the claims against defendant De Armond Reid should be dismissed.
In addition, plaintiff fails to allege facts sufficient to plausibly establish De- Armond-Reid violated his constitutional rights or violated the ADA.
With respect to defendant Eguchi, plaintiff fails to plausibly allege violations of his First, Fourth, Sixth and Fourteenth Amendment rights. Nor does plaintiff allege how Eguchi violated the ADA. Accordingly, the claims against defendant Eguchi should be dismissed.
Further, plaintiff does not allege facts from which it could be plausibly inferred that Multnomah County had a policy or practice that resulted in violation of plaintiff's civil rights. Nor has plaintiff alleged facts plausibly suggesting Multnomah County denied any services or benefits solely by reason of his central pain syndrome. Accordingly, the claim against Multnomah County should be dismissed.
Multnomah County also moves to dismiss the punitive damages claim against it which should be granted for the same reason they should be dismissed against the City of Portland.
F. Defendants Buetler, Johnson, and American Medical Response
Plaintiff alleges that on the evening of November 22, 2015, after experiencing frustration with attempts to obtain information from the Portland Police, he sought emergency medical assistance. Complaint (ECF 1) at p. 13-14. Plaintiff alleges an American Medical Response ambulance arrived and defendants Jakob Buetler and Aric Johnson provided “substandard medical care” because “neither understood central pain syndrome.” Plaintiff alleges defendants then refused to provide transport. Id. at pp. 14-15. Plaintiff alleges, in conclusory fashion, that defendants Buetler and American Medical Response had an ongoing practice of refusing to transport individuals requesting emergency medical transportation and then drugging those individuals. Id. at p. 16. Nonetheless, plaintiff alleges Buetler did transport plaintiff to Emanuel Hospital and told hospital personnel he was “uncooperative.” Id. at p. 17.
As noted above, actions occurring prior to November 30, 2018 are not actionable.Accordingly, the claims against defendants American Medical Response, Beutler, and Johnson should be dismissed.
Moving defendants assert the applicable statute of limitations is that found in Or. Rev. Stat. 659A.875(4) for claims brought under Or. Rev. Stat. 659A.403 which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, or age in places of public accommodation. However, the statute does not address disability discrimination.
In addition, plaintiff fails to allege facts sufficient to support the elements of a claim under either 42 U.S.C. § 1983 or the ADA.
G. Defendant TriMet
Plaintiff alleges on November 24, 2015, he was attacked by a passenger on a TriMet bus, and that the operator failed to intervene; on November 6, 2018, plaintiff was berated by a TriMet bus operator because of the patches on his jacket; and on November 9, 2018, while riding a TriMet bus a passenger threatened him and the operator failed to investigate, instead the operator called the police, and directed all passengers to exit the bus. Complaint (ECF 1) at pp. 21-22, 33-34, 34-36.
Again, plaintiff fails to plausibly allege a cause of action based on these facts and the purported actions fall outside the applicable statute of limitations as noted above. Accordingly, the claims against the TriMet defendants (defendants TriMet, Unidentified TriMet Personnel 1, Unidentified TriMet Personnel 2, and Joseph James Witt) should be dismissed.
H. Defendants Legacy Emanuel Hospital, David Griffiths Davies, and Mario Gochez-Chinchilla
Plaintiff alleges he sought treatment at Legacy Emmanuel Hospital on October 15, 2011, November 20, 2015, November 22, 2015, and November 6, 2018. Complaint (ECF 1) at pp. 1112, 17-18, 33.
Plaintiff alleges that after receiving treatment on November 20, 2015 defendants Emanuel security guards David Griffiths Davies and Mario Gochez-Chinchilla effected a citizen's arrest and reported to police that plaintiff had been arrested for trespass. Id. at p. 17. Plaintiff alleges Hospital staff falsely claimed he smelled of alcohol when he was arrested for trespass in October 2011. Id. at pp. 17-18. Plaintiff asserts that arrest was a contributing factor to his return to Emanuel less than a day later with “extraordinary and life-threatening heart rate [he] survived on October15, 2011.” Id. at p. 18.
Plaintiff alleges, in conclusory fashion:
Legacy Security personnel had a practice of arresting Stull for trespassing, to which Stull claimed was fraud by Legacy Security personnel in Legacy's ongoing practice of unlawful discrimination and retaliation, and after Legacy Security arrested Stull on November 22, 2015, and while Stull was defending the charge of criminal trespass, Legacy Security destroyed the security footage which would have proven Stull's encounter with Legacy Security defendant Davies and Defendant Gochez-Chinchilla was the result of an intentional and an ongoing unlawful practice by Legacy Security.
Legacy Hospital has a security policy which unlawfully discriminates against persons with disabilities in violation of the ADA Id.
Plaintiff alleges that following a cycling accident on June 14, 2018, he sought treatment at Legacy Emanuel on November 6, 2018 where, after an examination and then an attempt to leave, defendant Davies “took out a pair of handcuffs and brandished them causing plaintiff to run.” Id. at p. 33.
As with the other allegations against private medical providers and security, plaintiff fails to allege facts plausibly suggesting entitlement to relief under the ADA or Section 1983. Moreover, the allegations fall outside the statute of limitations and thus the claims against defendants Legacy Emanuel Hospital, David Griffiths Davies, and Mario Gochez-Chinchilla should be dismissed.
I Defendants Gabriel Maldonado and City of Tigard
Plaintiff alleges defendant Tigard Police Officer Gabriel Maldonado, following the TriMet bus incident of November 9, 2018, transported plaintiff to the Multnomah County Detention Center and described to plaintiff the various forms of punishment he planned and then
grabbed Stull's feet and pulled Stull out until the seat belt caught around Stull's neck and kept pulling as Stull exclaimed. Defendant Maldonado then pushed Stull back until the seatbelt cleared from under Stull's chin where it had choked Stull, then pulled Stull back out saying, "Get on the ground," which Stull thought meant to stand on the pavement since defendant Maldonado still had Stull's feet in his hands.
Defendant Maldonado then threw Stull down to the sidewalk and jumped on Stull's back, causing injuries to Stull's back, wrists, and especially Stull's right shoulder which Stull landed on while handcuffed behind the back.Id. at p. 36-37.
While these allegations may suffice to plead a plausible claim for excessive force, they do not link any action to plaintiff's purported disability and thus fail to plead a claim for violation of the ADA. Moreover, the actions fall outside the applicable limitations period. Accordingly, the claims against the City of Tigard and Maldonado should be dismissed.
The allegations do not establish Section 1983 liability by the City of Tigard as plaintiff fails to link any injury to a City policy. In response, plaintiff asserts defendant Maldonado failed in his duties under the ADA and Or. Rev. Stat. 659A.142 because he made no attempt to accommodate plaintiff's disability nor made any inquiry into the nature of plaintiff's disability. However, this allegation does not appear in the complaint and plaintiff does not assert that Maldonado knew of the disability and then took discriminatory action solely because of that disability. Moreover, as noted above, only the public entity itself can be liable under Title II of the ADA, not individual employees of the City.
J. Defendants State of Oregon and Thomas Cleary
Plaintiff alleges defendant State of Oregon, through defendant Multnomah County District Attorney, prosecuted plaintiff, for events occurring on November 23, 2015, in 2016 where he was barred from arguing about the lawfulness of an exclusion order (including evidence to support the argument such as medical records for having been treated for central pain syndrome). Complaint (ECF 1) at p. 32. Plaintiff alleges he was convicted for trespass which was affirmed on appeal. Similarly, plaintiff alleges “prosecution in 2016, for events occurring on November 25, 2015.” Id. at p. 33. Plaintiff asserts this conviction was reversed on appeal on April 24, 2019.
1. Eleventh Amendment
The Eleventh Amendment provides:
"The 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."This Amendment affirms the fundamental principle of sovereign immunity which limits the grant of judicial authority in Article III of the Constitution. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 98 (1984). A State's Eleventh Amendment protection from suit has been extended to suits brought by a State's own citizens, Hans v. Louisiana, 134 U.S. 1, 10 (1890), and suits invoking the federal question jurisdiction of Article III. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996).
A suit against a State agency is considered to be a suit against the State and is also barred by the Eleventh Amendment. Shaw v. California Dept. of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir. 1986). In addition, "[w]hen suit is commenced against state officials, even if they are named and served as individuals, the State itself will have a continuing interest in the litigation whenever State policies or procedures are at stake." Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 269 (1997).
Under Oregon law, district attorneys are law officers of the State. Oregon Constitution Article VII § 17; State v. Clark, 291 Or. 231, 245, 630 P.2d 810, cert. denied, 454 U.S. 1084, (1981); State v. Coleman, 131 Or.App. 386, 390, 886 P.2d 28, review denied, 320 Or. 588, 890 P.2d 994 (1995). The state allocates money to pay or help pay the salaries of district attorneys and deputy district attorneys. See 2003 Oregon Laws Chapters 9 and 624. District attorneys are elected by the voters of each county, and, when a vacancy occurs, the governor appoints a person to fill the vacancy until the next election. Or. Rev. Stat. § 8.610 and Or. Rev. Stat. § 8.640. The county merely provides the district attorney and deputy district attorneys with office space, facilities, supplies, and assistance. Or. Rev. Stat. § 8.850. The district attorney has the power to appoint deputy district attorneys. Or. Rev. Stat. § 8.760 and Or. Rev. Stat. § 8.780. Deputy district attorneys are “subject to the direction of the district attorney”. Or. Rev. Stat. § 8.780. Deputy district attorneys serve at the pleasure of the district attorney. 1984 WL 192152 (Or.A.G.). Accordingly, all prosecutors within the district attorney's office constitute a state entity, not a county entity. See Kleinman v. Multnomah County, 2004 WL 2359959, at *5 (D.Or. October 15, 2004) (the Multnomah County District Attorney's Office is a state entity).
Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, a State cannot be sued directly in its own name regardless of the relief sought in a Section 1983 claim. Garcia v. City of Merced, 637 F.Supp.2d 731, 758 (E.D. Cal. 2008). The State of Oregon has not waived its sovereign immunity suit under Section 1983 in federal court and the Supreme Court has explicitly held that “§ 1983 was not intended to abrogate a State's Eleventh Amendment immunity.” Ishmael v. Oregon Dep't of Corr., 2015 WL 5829808, at *2 (D. Or. Oct. 6, 2015) (quoting Kentucky v. Graham, 473 U.S. 159, 169 n. 17 (1985)). Moreover, the State is not a person for purposes of Section 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989). Accordingly, the Section 1983 claims should be dismissed against the State of Oregon, the Multnomah County District Attorney and Deputy District attorney Thomas Clearly in their official capacities.
2. Statute of Limitations
It appears the acts complained of by plaintiff all occurred prior to November 30, 2018, as he asserts the prosecution occurred in 2016. Accordingly, the Section 1983 and ADA claims against defendants the State of Oregon and Deputy District Attorney Thomas Clearly should be dismissed
To the extent plaintiff asserts any claims related to his appeal in 2019, in initiating a prosecution and in presenting the State's case, a prosecutor is immune from a civil suit for damages under Section 1983. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). The immunity extends to all acts intimately associated with the judicial phase of the criminal process. Patterson v. Van Arsdel, 883 F.3d 826, 830 (9th Cir. 2018). Accordingly, the section 1983 claim should be dismissed against defendant Thomas in both his official and individual capacities.
3. ADA Claim
As noted above, individuals are not subject to Tile II of the ADA. See City & Cty. of San Francisco, Calif, v. Sheehan, 575 U.S. 600, 610 (2015) (Only public entities are subject to Title II). Accordingly, the ADA claim against defendant Thomas Clearly should be dismissed. Moreover, plaintiff fails to plead any facts sufficient to plausibly suggest any actions taken in his prosecution were a denial of benefits, services, or programs solely by reason of his disability. Accordingly, the ADA claim against the State of Oregon should be dismissed.
The State also moves to dismiss the punitive damages claim against it which should be granted for the same reason they should be dismissed against the City of Portland.
K. Defendant G4S
On November 24, 2015, plaintiff alleges while he was at the Portland City Hall Office of Neighborhood Involvement, he requested “a Multnomah County Health Department Medical Transport ride to [his] home, just like I saw my neighbor get this morning.” Complaint (ECF 1) at pp. 23-24. Plaintiff alleges a City staff person denied that such service existed. Plaintiff alleges he then called Marco Circosta about the ride and noticed defendant G4S employee James Wood was “seething, ” and told plaintiff he was going to impose a 24-hour notice of trespass exclusion. Id. at p. 24.
Plaintiff asserts
Defendant Wood and other defendant unidentified G4S personnel sought to prevent Stull from continuing to expose misdeeds of City agents and employees of the City of Portland through public testimony at City Hall and gathered information on Stull's activities and distorted that information on Stull's activities to further the effort to silence Stull.
Defendant G4S personnel knew Stull had specifically requested information regarding Multnomah Health Department Medical Transportation at the time defendant Bryant Enge promulgated the December 1, 2015 notice of exclusion based on Stull asking for the City to provide a ride home, repeated that conflation regarding Stull's interaction with Jasmine Wadsworth as Stull exited, rather than lingered, and claimed Stull would not follow a lawful exclusion when Stull accurately identified the City policy was illegal.Id. at p. 25.
Plaintiff alleges “defendant G4S and defendant Bryant Enge instead characterized Stull's acts to the contrary in an ongoing effort to silence Stull, with Enge claiming how on November 23, 2015 Stull ‘stated in hearing of City staff [Stull] desired to get arrested at City Hall.'” Id. at p. 26. Plaintiff asserts when he entered City Hall on November 25, 2015, defendant Wood “concocted some bogus scheme.” Plaintiff alleges he informed City staff that he suffered from central pain syndrome, could die from it, and requested emergency transport. However, in response the Portland Police subjected him to excessive force and arrest. Id. at p. 27-29.
Again, plaintiff fails to plausibly plead the elements of a Section 1983 or ADA claim against defendants G4S, but more importantly, the acts for which he complains fall outside the applicable statute of limitations as noted above. Accordingly, the claims against G4S should be dismissed.
With the possible exception of a First Amendment Claim if James Wood and other G4S personnel could be considered state actors. However, plaintiff has not served Wood or the unidentified personnel.
L. Leave to Amend
To the extent any claims or defendants remain, the Court, on its own motion, dismisses those claims for failure to comply with the applicable pleading standards.
In determining the sufficiency of a pro se complaint, the court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (in assessing whether a complaint fails to plead a claim, the court must accept all factual allegations as true); Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996) (allegations of material fact are taken as true and construed in the light most favorable to plaintiff).
A complaint must comply with the pleading requirements of the Federal Rules of Civil Procedure. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Fed.R.Civ.P. 8(a)(2) requires a complaint contain “a short and plain statement of the claim showing the pleader is entitled to relief.” However,
[w]hile a complaint ... does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level....Bell Atlantic Corp., 550 U.S. at 555 (citations omitted). Moreover, the Supreme Court has emphasized that, when assessing the sufficiency of any civil complaint, a court must distinguish factual contentions-which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted-and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft, 556 U.S. at 678. In short, “a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Id.
Plaintiff's complaint is a lengthy scattered recitation of his encounters with various law enforcement, security, and medical personnel. Plaintiff fails to identify the specific acts of any given defendant that violate his civil rights or his rights under the ADA. As noted above, to plead a Section 1983 claim, plaintiff must plead for each defendant the violation of a right secured by the Constitution or laws of the United States and, second, that the alleged deprivation was committed or caused by a person acting under color of law. To plead a Title III ADA claim, plaintiff must allege for each appropriate defendant that (1) he is disabled as that term is defined by the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; (3) the defendant employed a discriminatory policy or practice; and (4) the defendant discriminated against the plaintiff based upon the plaintiff's disability by (a) failing to make a requested reasonable modification that was (b) necessary to accommodate the plaintiff's disability. Because the only remedy available under Title III of the ADA is injunctive relief, plaintiff must also show a sufficient likelihood that he will again be wronged in a similar way. To plead a Title II claim, plaintiff must allege for each appropriate defendant, (1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefits of services, programs, or activities of the defendant public entity; and (3) he was denied the benefits, services, or programs solely by reason of his disability. In addition, plaintiff's response indicates he may also seek to allege claims under Oregon disability discrimination statutes. If plaintiff seeks to add such claims, he must clearly identify the cause of action and plead sufficient factual matter to plausibly suggest entitlement to relief under the appropriate statute against appropriate defendants. The standard for establishing a prima facie case under the Oregon disability statutes is the same as the analogous ADA provision. See Wheeler v. Marathon Printing, Inc., 157 Or.App. 290, 301 n. 6, 974 P.2d 207 (1998) (noting that the Oregon statutory scheme regarding workplace discrimination against disabled persons “contain[s] language significantly similar to the ADA”); see also Or. Rev. Stat. 659A.139 (“ORS 659A.103 to 659A.144 shall be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Americans with Disabilities Act”). In addition, plaintiff must confine his complaint to actions occurring on or after November 30, 2018.
Where a complaint can be remedied by amendment, a district court may not dismiss the complaint with prejudice but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992). Therefore, plaintiff should be allowed 14 days from the date the Court finally resolves the above motions to file a complaint that complies with the requirements of Fed.R.Civ.P. 8(a).
Plaintiff must also comply with the service requirements of Fed.R.Civ.P. 4. Plaintiff should be warned that failure to file an amended complaint as ordered will result in the dismissal of this action.
CONCLUSION
The motions to dismiss (ECF 14, 18, 20, 23, 26, 27, 29, 31, 34, 42, and 48) should be granted and the complaint should be dismissed. Plaintiff should be granted 14 days to file any amended complaint curing the defects noted above. Plaintiff should be warned that a failure to comply will result in dismissal of this action.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.