City of Medford

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Civ. No. 1:18-cv-01405-CL (D. Or. Jul. 31, 2018)

Civ. No. 1:18-cv-01405-CL




This matter comes before the Court on Plaintiff Aisling Moore Reed ("Moore Reed")'s Application for Leave to Proceed in forma pauperis ("IFP"), ECF No. 2. For the reasons discussed below, the Complaint, ECF No. 1, should be DISMISSED with leave to amend. The Court should defer ruling on the 1FP petition pending submission of an amended complaint.


Generally, all parties instituting any civil action in United States District Court must pay a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP statute, 28 U.S.C. § 1915(a)(1), provides indigent litigants an opportunity for meaningful access to federal courts despite their inability to pay the costs and fees associated with that access. To authorize a litigant to proceed IFP, a court must make two determinations. First, a court must determine whether the litigant is unable to pay the costs of commencing the action. 28 U.S.C. § 1915(a)(1). Second, it must assess whether the action is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune to such relief. 28 U.S.C. § 1915(e)(2)(B).

In regard to the second of these determinations, district courts have the power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the complaint on the defendants, and must dismiss a complaint if it fails to state a claim. Courts apply the same standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss under the federal pleading standards, the complaint must include a short and plain statement of the claim and "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)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully." Id. The court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id.

Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). That is, the court should construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint and the opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. Id.


Based on the Complaint, it appears that Plaintiff Moore Reed was involved in the shooting death of her uncle, Patrick Shannon Moore. The Complaint describes the circumstances leading up to the shooting in some detail, although Moore Reed's particular role in the shooting itself is not described. Moore Reed was taken into police custody following the shooting. She was transported to a sheriff's station and placed in an interrogation room. Moore Reed alleges that she invoked her right to counsel when she was initially arrested and again when she was placed in an interrogation room.

After several hours in police custody, Moore Reed alleges that she was experiencing symptoms of prescription medication withdrawal, combined with the effects of hunger and lack of sleep, which left her "psychologically and mentally unfit to answer questions." Compl. 5. At this point, Doe Defendants One and Two, who Moore Reed alleges are Medford Police Department detectives, joined her in the interrogation room. Moore Reed again invoked her right to counsel and told the detectives that "she did not want to discuss the events of that day with them without the assistance of counsel, but said that she did want to provide the Doe Defendants with some history of the Decedent's assaults upon her and the Decedent's threats of violence and death against her and her family." Compl. 5.

After Moore Reed had provided this statement, the detectives informed her that she could supplement her statement at any time and then withdrew from the interrogation room. At this point.

Moore Reed became fearful that in her impaired state she had left out some important details about her past history with the Decedent and summoned the Doe Defendants back to the interrogation room. She offered clarification she thought she needed to make and was about to reiterate her request for counsel when one of the Doe Defendants thrust an inflammatory and shocking document before her and demanded she "explain" it. Ambushed in this way, exhausted, impaired and traumatized, having been in police custody for some seven hours without any explanation about when an attorney would be provided her, Moore Reed was trapped into answering questions about the day's events . . .

Compl. 5-6.

The Complaint is silent as to the nature of the "inflammatory and shocking" document Moore Reed was asked to explain, nor does it say how that seeing that document compelled her to make a statement to the detectives.

Moore Reed asserts that the actions of the detectives violated her Sixth Amendment right to counsel and bring this action pursuant to 42 U.S.C. § 1983.

Title 42 U.S.C. § 1983 "provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286, 290 (1999). To maintain a claim under § 1983, "a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

The Sixth Amendment provides, inter alia, that "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. Amend. VI. The Sixth Amendment right to counsel is offense-specific, however, and does not attach until after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Texas v. Cobb, 532 U.S. 162, 167-68 (2001); see also United States v. Danielson, 325 F.3d 1054, 1066 (9th Cir. 2003) (a defendant's "Sixth Amendment right to counsel attached when the government initiated adversarial proceedings against him.").

The Sixth Amendment right to counsel was made applicable to the states by the Fourteenth Amendment. See, e.g., Pointer v. Texas, 380 U.S. 400, 401 (1965).

In this case, it appears that the alleged violation occurred during the investigatory phase of the case, before any adversarial judicial proceedings had been initiated against Moore Reed. If Moore Reed was charged with a criminal offense arising from the death of Patrick Moore, the Complaint does not mention it. The Complaint has therefore failed to state a claim for violation of Moore Reed's Sixth Amendment rights.

Although Moore Reed invokes the Sixth Amendment, the right to counsel and silence during a police interrogation is more properly considered under the Fifth Amendment, which provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. "The touchstone of a Fifth Amendment claim is . . . the later use of an incriminating statement by the defendant while in custody." Siwiec v. Thompson, No. CV-02-454-ST, CV 02-460-ST, 2004 WL 2480516, at *18 (D. Or. Nov. 3, 2004). The Supreme Court has held that even coercive interrogations do not give rise to civil liability under the Fifth Amendment unless the compelled statement is used in a criminal case. Chavez v. Martinez, 538 U.S. 760. 766-67 (2003). Within that framework, courts within this District have concluded that a plaintiff "is not entitled to bring a § 1983 claim for damages against the police for violation of his rights to silence and counsel when [the police] did not use statements against him in a criminal proceeding." Hartfield v. Besner, Civil No. 3:11-CV-00100-KI, 2012 WL 2788050, at *10 (D. Or. July 9, 2012).

The Fifth Amendment protection against self-incrimination was made applicable to the states by the Fourteenth Amendment. See, e.g., Estelle v. Smith, 451 U.S. 454, 462 (1981).

In this case, the Complaint does not clearly allege that the statements Moore Reed made to the detectives were incriminating, nor is there any allegation that the statements were later used against her in a criminal proceeding. The Court therefore concludes that, to the extent that Moore Reed's claim may be understood as arising under the Fifth Amendment, rather than the Sixth Amendment, Moore Reed has failed to state a claim.

If there is an ongoing criminal case against Moore Reed in the Oregon state courts, the Court strongly urges Moore Reed to consult with her defense attorney before pursuing this litigation any further. --------

It is possible that Moore Reed might remedy these deficiencies by the allegation of additional facts. The Court therefore concludes that dismissal should be with leave to amend. Moore Reed should be given thirty (30) days in which to file an amended complaint and advised that failure to file within the allotted time will result in the entry of a judgment of dismissal. In drafting her amended complaint, Moore Reed should bear in mind that the Court does not know anything about her case other than what she chooses to include in the amended complaint.


The Court should DISMISS the Complaint, ECF No. 1, with leave to amend. Plaintiff should be given thirty (30) days from the date of the district court's Order in which to file an amended complaint and Plaintiff should be advised that failure to file an amended complaint within the allotted time will result in the entry of a judgment of dismissal. The Court should defer ruling on Plaintiff's IFP petition, ECF No. 2, pending submission of an amended complaint.


The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.


A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.

It is so ORDERED and DATED this 31 day of July, 2018.



United States Magistrate Judge