Kohler v. City of Eugene et al, No. 6:2014cv01879 - Document 19 (D. Or. 2015)
Court Description: OPINION AND ORDER: Defendant's motion to dismiss 12 is granted in part and denied in part. Plaintiff's claims against the City of Eugene and the City Prosecutor are DISMISSED. Within thirty (30) days from the date of this Order, plaintiff shall file a second amended complaint and name the officers identified in his prior complaints as defendants in the caption. Plaintiff is advised that failure to file an amended complaint as ordered will result in the dismissal of this proceeding. Plaintiff's motions for continuance, evidentiary hearing, and discovery 14 17 are denied. Copy of OPINION AND ORDER sent to Pro Se Plaintiff. Signed on 7/22/2015 by Chief Judge Ann L. Aiken. (rh)
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Kohler v. City of Eugene et al Doc. 19 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON KASHON NATHANIEL KOHLER, Case No. 6:14-cv-01879-AA OPINION AND ORDER Plaintiff, v. CITY OF EUGENE ET AL, Defendant. AIKEN, Chief Judge: Plaintiff, negligence, appearing battery, pro alleges se, of deprivation excessive process, due force, public humiliation, and defamation of character. Pl. Amend. Compl. 3-4. On May 26, 2015, Defendant Plaintiff's Amended Complaint for which relief may be granted. light most in the complaint favorable to the as a failure See Fed. considering a motion to dismiss, allegations filed R. motion to state a Ci v. P. to dismiss claim for 12 (b) ( 6) . When a court must accept all factual true and construe non-moving party. them in See Ashcroft a v. 1 - OPINION AND ORDER Dockets.Justia.com Iqbal, 566 U.S. 662, 678 (2009). To survive a motion to dismiss a complaint must contain sufficient facts, if accepted as true, to on state a (quotations less claim omitted) . stringent liberally but pled. that 768 standard, in its pro se litigants which a court Pardus, F.3d 1237, 1241 551 U.S. 89, (9th Cir. face." Id. are held to views supply essential elements See Erickson v. Harris, Further, standard cannot is the of a a pleading claim not 94 (2007); Litmon v. 2014). Pursuant to this Defendant's motion is granted in part and denied in part. Discussion Plaintiff's claims arise from an incident on May 30, 2014, when he was allegedly "tackled." Defendant argues that Plaintiff's state law claims against the Eugene Police Department and the City Prosecutor should be consolidated because the proper defendant is the City of Eugene. Defendant further argues that Plaintiff failed to plead adequate tort claim notice under Or. torts caused by officers, Rev. Stat. employees, §30. 27 5. I agree. All or agents of a public body acting within the scope of their employment constitute actions under Or. Rev. Stat. § 30.260-.300, which restiicts liability to "public bodies." Or. Rev. Stat.§ 30.265. All causes of action in tort, "a breach of a legal duty ... imposed by law, other than a duty arising from contract or quasi-contract," generally require 2 - OPINION AND ORDER notice days of such after the 30.275(2)(b). Plaintiff claims to alleged the loss Plaintiff's fails to offending public body within or injury. claim allege or See arose on Or. Rev. May establish that 18 0 Stat. § 30, gave notice upon he 2014, and diversity to the Defendant satisfying §30.275. Defendant contends that jurisdiction and therefore Plaintiff does not necessarily allege for excessive force under 42 U.S.C. the Plaintiff's complaint intended to assert a nonetheless because Plaintiff policy or U.S.C. § 658, argues 1983. 690-91 government responsible his However, find §1983 claims to properly establish v. an allegation deprivation agree. original or of Plaintiff Defendant dismissed an official liability of of the Soc. § 1983 under Servs., action that official rights makes amended complaint 436 such and does 42 U.S. against policy protected no claim Plaintiff be allege a construing that should municipal Dep't. touchstone a I I any Monell is for Constitution.") . within to (" [T] he body liberally, failed has See § 1983. federal claim pursuant to §1983. that custom relies by a is the allegations not state a claim against the City of Eugene. However, as defendants Plaintiff in the named original the individual complaint. See officers Pl. involved Compl. at 3. Despite not naming these officers in the caption of his Amended Complaint, Plaintiff 3 - OPINION AND ORDER identified Officer Ware, individually, within his factual allegations in support of his excessive force claim. See pl'eading Pl. Amend. Compl. standards At 3. to Because pro se of the litigants liberal and the discretion provided to this court, Plaintiff is granted 30 days leave properly to amend his complaint to name the relevant officers as defendants. Conclusion For the reasons above, 12) Defendant's motion to dismiss is granted in part and denied in part. against the City of Eugene DISMISSED. Within thirty plaintiff shall· file a (30) and the Plaintiff's City (doc. claims Prosecutor are days from the date of this Order, second amended complaint and name the officers identified in his prior complaints as defendants in the caption. Plaintiff is complaint as proceeding. ordered advised that failure will in Plaintiff's result motions for the to Dated day of July, 2015. Ann Aiken U.S. District Judge 4 - OPINION AND ORDER an amended dismissal continuance, hearing and discovery (docs. 14, 17) are denied. IT IS SO ORDERED. file of this evidentiary
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