Solo v. Central Oregon Community College et al
Filing
20
ORDER: Granting 5 Motion to Dismiss for Failure to State a Claim. Signed on 12/21/2011 by U.S. District Judge Michael R. Hogan. (jw)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
RANDOLPH SOLO
Civil No.
11-6242-HO
Plaintiff,
ORDER
v.
CENTRAL OREGON COMMUNITY
COLLEGE,
Defendants.
INTRODUCTION
Pro se plaintiff Randolph Solo (Solo) brings suit against
defendants Central Oregon Community College (COCC); Pad Amar
(Amar) and Megan Bernard (Bernard), in their individual
capacities
and assault.
alleging violations of his civil rights, coercion
[#l].
Plaintiff admits he lived in a stc.dent
dormitory while attending COCC and alleges that his complaints
about dormitory food led to defendants "threaten[ing] plaintiff
with arrest, den[ying] him due process, illegally restrict[ing]
the free speech of plaintiff on numerous occasions via coercion
and interfered with the occupation of a college student by
displacing plaintiff from
hi~
place of residence (mid-term) by
unlawful eviction" in violation of 42 U.S.C. §1985 and 42 U.S.C.
ORDER - p.l
§1983.
[n -pp . 2 ,
4 - 5 ,'l[ 8].
Defendants move to dismiss this action arguing that
plaintiff's claims are precluded by COCC's Eleventh Amendment
immunity and defendants Amar and Bernard's qualified immunity.
[#5; #6-pp.1-2].
Additionally, defendants argue that plaintiff
has failed to state facts that support either a statutory or
common law claim of assault or coercion.
[#6-p.2]
Discussion
Plaintiff (to the extent his claims can be construed),
brings the following claims against both COCC and dormitory
supervisors Amar and Bernhard in their individual capacities:
(1) violation of 42 U.S.C. §1985; (2) violation of equal
protection and due process under 42 U.S.C. §1983;
of plaintiff's First Amendment rights;
and (5) common law coercion.
[#1].
(3) violation
(4) common law assault
Plaintiff seeks damages
totaling $1,011,800.00 and injunctive relief prohibiting
defendants from "enforcing COCC rules entitled 'Harassment' and
'Threats'''. [#l-pp.12-13].
Defendants move to dismiss plaintiff's claims under
Fed.R.Civ.P. 12 (b) (6).
1.
[#5; #6J.
Motion to Dismiss Standard:
Under Fed. R. Civ. P. 8(a) a pleading must contain a "short
and
p~ain
statement of the claim showing that the pleader is
entitled to
f."
This pleading standard does not require
detailed factual allegations but does demand more than "an
unadorned the defendant-unlawfully-harmed-me accusation."
ORDER - p.2
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).
To survive a motion to dismiss, a complaint must therefore
contain sufficient facts which, accepted as true, will "state a
claim to relief that is plausible on its face."
v. Twombly, 550 U.S. 544, 570 (2007).
Bell Atlantic
A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to reasonably infer that the defendant is
liable for the misconduct alleged.
rd., at 556.
The
plausibility standard is not akin to a "probability
requirement," but does require more than a sheer possibility
that a defendant has acted unlawfully.
rd.
This standard holds
true even under the liberal construction afforded a pro se
litigant's pleadings.
Hebbe v. Pliler, 627 F.3d 338 ,342 (9th
Cir. 2010).
2.
Facts as Pleaded:
The background facts are gleaned from plaintiff's
Complaint.
[#lJ.
Plaintiff alleges that while he was a student
at COCC, living in a COCC dormitory, defendants "prevented [himJ
from asserting [his] c.ivil rights by threatening [him] with
fabricated disciplinary actions and physical harm." [#1-pp5-6].
On or about May 3, 2011, defendant Amar allegedly alerted a
food-service employee's husband that plaintiff had complained
about the food.
[#l-p. 6, Exs l, 2].
Subsequently, plaintiff
contends the husband told him "you should be careful that you
don't get fitted with cement shoes and thrown into the Deschutes
River." [.1-p.6].
ORDER - p.3
On May 17, 2011, plaintiff alleges that defendant Amar left
"a live .25 caliber handgun bullet in plain view on the men's
bathroom floor of Juniper Hall, directly across from
[plaintiff's] dorm room with the intended purpose of delivering
a death threat to [plaintiff]."
Id.
The next morning plaintiff
alleges that defendant Bernard, told him not to tell anyone
about the bullet.
[#l-pp.6-7].
Plaintiff admits he
subsequently "warned" several of his fellow students that
"someone may have a gun in the dorm."
Amar reported plaintiff's
warnings to Paul Wheeler as a violation of the 'Breach of the
Peace' dormitory policy. [#l-p. 7].
Plaintiff asserts that on May 19, 2011, acting on
plaintiff's insistence, Wheeler sent an email to dorm students
telling them a "single piece of small caliber ammunition was
discovered" and assuring them "that Juniper Hall remains a safe
and secure place to live."
[#1-p.7, Ex. 5J.
That same day
plaintiff, Wheeler and Amar conducted a hearing at which it was
determined that plaintiff would be evicted from the dormitory
based on the 'Breach of Peace' charges.
[#l-pp. 7-8].
Subsequent to the hearing, plaintiff alleges he was "evicted
from the building and threatened [] with arrest for trespass if
[he] returned."
[#l-p.8, Ex 7].
Plaintiff admits that he did not appeal this eviction
because "[a]t this point it was obvious to [him] that any
disciplinary hearings that occurred on the
eoee
devoid of impartiality and were mere facade . .
ORDER - p.4
campus were
"
[#17-'ll'll 17-
18] .
3.
Eleventh Amendment Immunity:
Defendants assert that COCC is a public community college
and thus an arm of the State of Oregon, and so entitled to
Eleventh Amendment immunity
[#60-p.3]
Previous Ninth Circuit cases have found that the Oregon
Board of Higher Education is immune from suit under 42 U.S.C.§
Peters v. Lieuallen, 693 F.2d 966,
1983.
970 (9th Cir. 1982) ( a
suit against the [Oregon] State Board of Higher Education is a
suit against the state qua state and is, therefore, barred by
the Eleventh Amendment).
To determine whether an Oregon
community college such as COCC enjoys Eleventh Amendment
immunity, the court must look to COCC's nature as created by
state law.
Regents of the Univ v. Doe, 519 U.S.
425, 429-30
(1997) .
Oregon statutory law subjects the community colleges to the
jurisdiction of the Board of Higher Education.
009(4).
cocc
, ORS 341-
is therefore an arm of the State of Oregon and
immune from suLt under the Eleventh Amendment.
4.
Qualified Immunity:
Defendants argue individual defendants Amar and Bernhard
are not subject to suit under section 1983 or 1985 unless they
took an affirmative part in the alleged deprivation of
constitutional rights.
Cir.1987).
King v. Atiyeh,
814 F. 2d 565, 568 (9th
Because the eviction notice did not come from either
Bernhard or Amar, defendants contend plaintiff has failed to
ORDER - p.5
demonstrate that neither individually named defendant played an
affirmative role in any alleged constitutional rights
deprivation.
[#6-pp.4-5].
Defendants further assert that even
if these defendants were involved in the actions of which
plaintiff complains, they are entitled to qualified immunity
because they could not have reasonably known that those actions
were a violation of any of plaintiff's constitutional rights.
[#6-pp. 4-8] .
Plaintiff admits that COCC's employees would have qualified
irmnunity however argues that because Amar and Bernard are not
employed by COCC, as is Wheeler, they are not entitled to
qualified immunity.
[#7-p.5].
Plaintiff also admits that he
failed to identify the section of 42 U.S.C §1985 under which he
was suing and requests leave of the court to amend his complaint
to include a claim under subsection
~3".
[#7-p. 6] .
A public official is shielded from liability so long as
that conduct is objectively reasonable and does not violate
clearly established federal rights.
U.S. BOO, 818 (1982).
protec~
Harlow v. Fitzgerald, 457
The purpose of qualified immunity is to
the public from unwarranted timidity on the part of
publio officials" and to avoid
~dampen[ing]
the ardour[sic] of
all but the most resolute, or the most irresponsible."
Richardson v. McKnight, 521 U.S. 399, 408 (1997).
the qualified immunity standard
~gives
To this end,
ample room for mistaken
judgments' by protecting all but the plainly inoompetent or
those who knowingly violate the law."
ORDER - p.6
Hunter v. Bryant, 502
u.s.
224, 29 (1991).
"Moreover, because the entitlement is an
immunity from suit rather than a mere defense to liability, [the
Court has] repeatedly
. stressed the importance of resolving
immunity questions at the earliest possible stage in
litigation."
Id. at 227 (emphasis in original).
Given that the named defendants are sued in their
individual capacities 1 , and were acting as student dormitory
officials, they are entitled to qualified immunity.
Section 1985(3) prohibits a conspiracy to deprive a person
of his or her rights or privileges.
42 U.S.C §1985(3).
To
justify relief under this subsection there "must be some racial
or otherwise class-based, invidious discriminatory animus behind
the conspirator's action."
88, 102 (1971).
Griffin v. Breckenridge. 403
u.s.
Plaintiff claims the protected class to which
he belongs is the "class of students".
[#7-p. 2] .
Even construing plaintiff's allegations broadly, his claim
fails to allege a conspiracy and clearly does not allege a
conspiracy motivated by race or any other protected class-based
discriminatory animus.
III
III
III
III
A qualified immunity defense is available only to
government officials sued in their individual
capacities. Eng v. Cooley. 552 F.3d 1062, 1064 n.l (9th
Cir. 2009).
ORDER - p.7
CONCLUSION
Defendants' Motion to Dismiss [#5J is GRANTED.
This action
is dismissed.
IT IS SO ORDERED.stDATED thi's
2-. -
day of December, 2011
STRICT JUDGE
ORDER - p.8
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