Curtis v. State of Oregon et al, No. 3:2012cv02369 - Document 38 (D. Or. 2013)
Court Description: OPINION AND ORDER. The Court GRANTS Defendant United States' Motion to Dismiss 18 and Defendant State of Oregon's Motion to Dismiss 16 , and hereby DISMISSES Plaintiff's Complaint. Because it is apparent the deficiencies of Plaintiff's Complaint cannot be cured by amendment, the dismissal is WITH PREJUDICE. IT IS FURTHER ORDERED that all other pending motions are DENIED. Signed on 7/9/2013 by Judge Anna J. Brown. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ROBERT CHARLES CURTIS, Civil No. 3:12-cv-02369-BR Plaintiff, OPINION AND ORDER v. STATE OF OREGON; and UNITED STATES OF AMERICA, Defendants. ROBERT CHARLES CURTIS P.O. Box 4261 Portland, OR 97208 Plaintiff Pro Se ELLEN F. ROSENBLUM Attorney General STEPHANIE M. PARENT Assistant Attorney General Oregon Department of Justice Special Litigation Unit 1515 SW Fifth Avenue, Suite 410 Portland, OR 97201 Attorneys for Defendant State of Oregon 1 - OPINION AND ORDER - S. AMANDA MARSHALL United States Attorney NATALIE K. WIGHT Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97204 Attorneys for Defendant United States BROWN, Judge. Plaintiff brings this civil action pro se. Currently before the Court are Defendant State of Oregon's Motion to Dismiss for Failure to State a Claim and Defendant United States' Lack Jurisdiction (#16) and Motion to Dismiss and Request to Stay Summary Judgment Proceedings (#18). on April 25, 2013. of The Court heard oral argument For the reasons that follow, the Court GRANTS the two motions to dismiss. BACKGROUND On November 19, 2012, Plaintiff filed Complaint" in Marion County Circuit Court. his "Civil Rights On December 31, 2012, Defendant United States removed the case to this Court. 1 The first 30 pages of Plaintiff's Complaint contain a largely incomprehensible discussion of various law and constitutional provisions, as well as a narrative of e v ents dating back to 1988 involving Plaintiff's mining activities and court actions. Plaintiff's Complaint then alleges ten "counts." 1 This Court denied Plaintiff's three motions to remand the case back to Marion County Circuit Court by Order (#36) filed on May 21, 2013. 2 - OPINION AND ORDER - The first six counts are directed to Defendant United States. Count One alleges that in 1998 State "First At tempted Murder." Plaintiff alleges the United States Ambassador and a employee conspired with Canadian Department of officials to order Plaintiff's murder by Canadian officers. In Count Two, Plaintiff alleges the United States Bureau of Land Management ( "BLM") ordered the "winterization of the Cleghorn Contract Project" in September 2000 without providing due process in order to "destroy" the "Life, Liberty, and Property" of Plaintiff, an alleged "Bomber Terrorist." Count Three alleges BLM officials committed abuse of process by denying Plaintiff's administrative claims in September 2000 and November 2007. Count Four alleges a BLM officer committed perjury when he lied to a grand jury and then to a jury at Plaintiff's criminal trial by stating Plaintiff was a flight risk. Plaintiff also alleges Magistrate Judge John Jelderks of this Court abetted the BLM officer in keeping Plaintiff incarcerated, which allowed Canadian officials to steal $23 billion in diamonds and gold. In Count Five, this time Security murder in Plaintiff again alleges "attempted murder," September Officer and Plaintiff in an 2004. "Unknown connection confiscated. 3 - OPINION AND ORDER - Plaintiff Bugeye with alleges Person" Plaintiff's a Homeland at tempted guns to being In Count Six, Plaintiff alleges District Judge Owen Panner of this Court committed violated abuse Plaintiff's of process First by Amendment intentionally rights and obstructing Plaintiff's ability to prosecute his myriad complaints in federal court. Count Seven is directed toward "Clackamas County," which is not a party to this action. Plaintiff alleges in April 2007, Clackamas County Sheriff's officers committed "abuse of process" by trying to murder Plaintiff after they approached his vehicle and conducted a "trumped up felony stop." Counts Eight and Nine are directed to Defendant State of Oregon. In Count Eight, Plaintiff alleges the State of Oregon committed "abuse of process" by violating Plaintiff's Eighth and Fourteenth Amendment rights by enforcing Chapter 809 of the Oregon Revised Statutes discussed below, related to the impoundment of vehicles. As this claim relates to Plaintiff's unsuccessful appeal of a Driving While Suspended conviction in state court. In Count Nine, Plaintiff alleges a fourth "attempted murder." He alleges in 2011, the Oregon Attorney General and Marion County authorized four police officers to use deadly force to arrest Plaintiff without a warrant or probable cause. Finally, in Count Ten Plaintiff alleges both the United States and the State of Oregon engaged in "reverse prejudice" in favoring Native American tribes over Plaintiff and every other 4 - OPINION AND ORDER - non-native citizen by giving the tribes special "nations," thereby making them "above the law." not allege he suffered any injury as a status as Plaintiff does result of the alleged "reverse prejudice." By way of remedy, Plaintiff seeks dismissal of state and federal civil complaints against him, "$5 billion claim against the an immediate trial on his United States, and II returning all assets and monies stolen from Plaintiff. an Order Plaintiff also seeks appointment of counsel. DISCUSSION I. Civil Rights Claims As a preliminary matter, the Court notes Plaintiff alleges violation of his rights under the United States Constitution and federal and state laws, as well as several tort claims. To the extent Plaintiff's Complaint is construed as an attempt to allege civil rights claims against the United States under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), the Complaint must be dismissed because the Bivens remedy exists States. against individual Thomas-Lazear v. officials, FBI, 851 not against F.2d 1202 , the 1207 United (9th Cir. 1988) . To the extent Plaintiff attempts to allege civil claims against Defendant State of Oregon under 42 U.S.C. 5 - OPINION AND ORDER - rights § 1983, the Complaint must be dismissed because the claims as alleged are barred by the State's sovereign immunity. Sewer Auth. v. Metcalf & Eddy, Inc., Puerto Rico Aqueduct & 506 U. S. 139, 144 (1993) (absent clear and unequivocal waiver, Eleventh Amendment bars suit in federal court against state agency) . Accordingly, the Court DISMISSES with prejudice all claims alleged in Plaintiff's Complaint which may be construed as brought pursuant to either Bivens or 42 U.S.C. § 1983. The remainder of this Opinion and Order, therefore, addresses Plaintiff's tort claims. II. Defendant United States' Motion to Dismiss Defendant United States moves to dismiss the first six counts of Plaintiff's preclusion, Complaint pursuant to because they are not timely, the doctrine of claim an d because Plaintiff fails to state a claim upon which relief ma y be granted under the Federal Tort Claims Act A. ( "FTCA") . Preclusion After "an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." 153 (1979). 6 - OPINION AND ORDER - Montana v. U.S., 440 U.S. 147, The Supreme Court discussed the concept of preclusion at length in Taylor v. Sturgell, Justice Ginsburg provides federal common law. 553 U.S. 880 (2008). In Taylor, significant clarity to this area of Justice Ginsburg noted the often confusing lexicon for preclusion and disfavored terms such as collateral estoppel, 892-94. direct estoppel, merger, bar, and privity. Id. at The Court defined claim and issue preclusion and their purposes as follows: The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as "res judicata." Under the doctrine of claim preclusion, a final judgment forecloses "successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit." New Hampshire v. Maine, 532 U.S. 742, 748 (2001). Issue preclusion, in contrast, bars "successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment," even if the issue recurs in the context of a different claim. Id. at 748-749. By "preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate," these two doctrines protect against "the expense and vexation attending multiple lawsuits, conserv [ e] judicial resources, and foste [ r] reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana v. United States, 440 U.S. 147, 153-154 (1979). Id. at 892. Defendant United States argues all of the events in Counts One through Six have been previously litigated and dismissed both in the District of Oregon, where Plaintiff has been a party to 21 separate actions, and the Northern District of California, where 7 - OPINION AND ORDER - Plaintiff was a party in seven actions. The majority of those cases were summarily dismissed sua sponte for lack of jurisdiction or failure to state a claim. Defendant United States describes at some length Plaintiff's myriad former cases and their outcomes in the Memorandum in Support of Motion to Dismiss and exhibits attached thereto, description the Court will not reiterate here. a At oral argument, the Court directly asked Plaintiff whether the claims alleged in this action were based upon the same underlying facts on which the claims in his prior actions were based. Plaintiff responded in the affirmative, "Yes, it comes from the same events." Accordingly, claims, Plaintiff is precluded from re~litigating his and Defendant United States' Motion to Dismiss must be granted. B. Statute of Limitations A claim under the Federal Tort Claims Act must be filed administratively with the appropriate federal agency within two years of its accrual, and suit must be commenced within six months of the agency's denial "Timely compliance with § of the claim. 28 u.s.c. § 2401(b). 2401 (b) is a jurisdictional prerequisite to maintenance of a FTCA suit." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). Plaintiff's claims against the United States in Counts One through Six range in date 8 - OPINION AND ORDER - from 1998 through 2007. Plaintiff alleges the BLM denied an administrative claim in 2002, and denied an amended administrative claim in 2007. Accordingly, any action based upon the denial of these two claims is time-barred. III. Defendant State of Oregon's Motion to Dismiss Defendant State of Oregon argues the claims alleged in Counts Eight and Nine should be dismissed because Plaintiff failed to satisfy the pleading requirements of the Oregon Tort Claims Act ( "OTCA"), and because Plaintiff otherwise fails to state claims upon which relief may be granted. 2 At oral argument, Defendant State of Oregon also argued the claim alleged in Count Eight is subject to preclusion. A. Oregon Tort Claims Act The OTCA mandates that no action shall be maintained unless the required written notice of claim is given within 180 days of the acts giving rise to the claims. · and ( 2 ) (b) . Or. Rev. Stat. § 30.275(1) Pleading and proof of notice sufficient to satisfy the requirements of§ 30 .275 are a mandatory requirement under the OTCA. Brinkley v. Oregon Health Sciences University, 94 Or . App. 531, 537, 766 P.2d 1045, 1049 (1988). Plaintiff had to plead that he gave a notice of claim as required by § 30 . 275. 2 Id. Because Defendant State of Oregon also argues the state is not a "person" for the purposes of 42 U.S.C. § 1983. Because the Court addressed the matter of the State of Oregon's sovereign immunity from civil rights claims above, the Court does not find it necessary to address this argument in the context of the State's OTCA arguments. 9 - OPINION AND ORDER - Plaintiff failed to do so , his claims based upon the OTCA must be dismissed for failure to state a claim upon which reiief may be granted . B. At Count Eight - Preclusion oral argument, Plaintiff stated the claim against Defendant State of Oregon alleged in Count Eight was based upon the fact that his driver's license was suspended and he was convicted of driving with a suspended license despite the fact that although suspension was no court based actually upon ordered an the suspension, administrative the determination. Plaintiff acknowledged, however, that the Oregon Court of Appeals denied his appeal from his conviction which was based upon the same argument . Accordingly, Plaintiff is precluded from re- litigating this argument in this Court . C. In Failure to State a Claim Count Nine , Plaintiff alleges four police officers arrested Plaintiff at gunpoint without showing any legal form of identification and without possessing a written copy of an arrest warrant or indictment . He alleges the officers therefore intended to murder him . To survive a motion to dismiss for failure to state a claim upon which relief may be granted, a complaint must contain "sufficient factual matter " to state a plausible claim for relief. Ashcroft v . Iqbal , 556 U. S. 662 , 678 (2009) . 10 - OPINION AND ORDER - The court must give no weight to "legal conclusions" dressed up as facts. I d. Furthermore, the complaint must do more than state facts that are "merely consistent with a defendant's liability." quotation marks omitted). (internal Id. The alleged facts must push the claim over "the line between possibility and plausibility." I d. at 68 0- 82. In Count Nine, Plaintiff alleges allegation of intent to murder him. no facts Instead, to support the he simply asserts that because his arrest allegedly occurred under the circumstances described, an intent to murder him must have been present. is not sufficient granted. Cir. 2009) to state See Moss v. U.S. ("bald a claim upon Secret Serv., allegation of which relief may be 572 F.3d 962, impermissible This 970 (9th motive standing alone, is conclusory and is therefore not entitled to an assumption of truth"). IV. Count Seven In Count Seven, Plaintiff alleges Clackamas County Sheriff's deputies committed "abuse of process" by attempting to murder him in the course of an arrest. To the extent Plaintiff is attempting to allege a claim against the Clackamas County Sheriff, he failed to name Clackamas County or the Sheriff as a Defendant. To the extent Count Seven may be construed as an attempt to state a claim against Defendant State of Oregon, the claim fails for the reasons discussed above. 11 - OPINION AND ORDER - V. Count Ten Finally, Plaintiff alleges in Count Ten that both the United States and the State of Oregon committed "reverse prejudice" by recognizing status. Native American Plaintiff does not, direct injury as a result. to assert this claim. Gutierrez, 545 F.3d tribes and however, granting allege them he special suffered any Accordingly, Plaintiff lacks standing See Salmon Spawning & Recovery Alliance v. 1220, 1225 (9th Cir. 2008) (to establish Article III standing, a plaintiff must show that: "(1) he or she has concrete suffered an injury in fact particularized, and actual or imminent; that is and (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision"). CONCLUSION For these reasons, the Court GRANTS Defendant United States' Motion to Dismiss [18] and Defendant State of Oregon's Motion to Dismiss [16], and hereby DISMISSES Plaintiff's Complaint. Because it is apparent the deficiencies of Plaintiff's Complaint cannot be cured by amendment, the dismissal is WITH PREJUDICE. 12 - OPINION AND ORDER - IT IS FURTHER ORDERED that all other pending motions are DENIED. IT IS SO ORDERED . DATED this q ~ day of July , 2013. ~ ANNA J . BROWN United States District Judge 13 - OPINION AND ORDER -
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