Cox v. City of Portland
| Decision Date | 26 October 2022 |
| Docket Number | 3:21-cv-00984-HZ |
| Parties | Tyler Cox, individually, Plaintiff, v. City of Portland, a municipal corporation, and Thomas Clark, in his individual capacity, Defendants. |
| Court | U.S. District Court — District of Oregon |
Joseph E. Piucci, Stephone V. Piucci, Piucci Law, LLC Christopher Marin Hamilton CBMH Law, Inc. Attorneys for Plaintiff
William W. Manlove, III City of Portland Attorneys for City of Portland.
Andrew D. Campbell Heltzel Williams PC Attorneys for Defendant Thomas Clark.
This matter comes before the Court on Defendant Thomas Clark's Partial Motion to Dismiss [8]. For the reasons that follow the Court denies Clark's Motion.
The following facts are taken from Plaintiff's Complaint and the parties' filings related to Defendant Clark's Motion to Dismiss and are taken as true unless otherwise noted.
On August 31, 2020, individuals gathered in the Pearl District of Portland, Oregon for a Black Lives Matter protest. Plaintiff Tyler Cox was present at the protest and volunteering as a medic.
At 11:04 p.m. on August 31, 2020, Portland Police made the following announcement via a “sound truck” to the protestors:
This is the Portland Police Bureau. To those in the area of N.W. 10th Avenue and N.W. Glisan Street: this has been declared an unlawful assembly. Officers have observed people gathered participate in vandalism, fire starting and burglary. All persons must immediately leave the area by travelling to the West. Failure to adhere to this order may subject to you arrest, citation, or crowd control agents including but not limited to, tear gas and/or impact weapons. Leave the area by travelling to the West now.
Decl. of Amy Bruner-Dehnert, Ex. 11 [ECF 10]. At 11:07 p.m., the police made the following announcement via the Sound Truck:
This is the Portland Police Bureau. To those in the area of N.W. 10th Avenue and N.W. Glisan Street: this has been declared a riot. Officers have observed people gathered participate in vandalism, fire starting and burglary. All persons must immediately leave the area by travelling to the West. Failure to adhere to this order may subject to you arrest, citation, or crowd control agents, including but not limited to, tear gas and/or impact weapons. Leave the area by travelling to the West now.
Bruner-Dehnert Decl, Ex. 2. The police made a similar announcement at again at 11:09 p.m. At 11:11 p.m., police made an announcement directing individuals to allow fire personnel safe access. Police made three more announcements at 11:12 p.m., 11:14 p.m., and 11:24 p.m., declaring a riot and instructing all persons to move west. Id., Ex. 3.
At approximately 11:25 p.m. the crowd, including Plaintiff, was moving to the west on N.W. Glisan Street between N.W. 11th and 12th Avenues. As the crowd reached the intersection of N.W. Glisan Street and N.W. 12th Avenue a group of police officers forced the crowd to turn north on 12th Avenue. Plaintiff alleges that after the crowd turned north onto N.W. 12th Avenue and began walking towards N.W. Hoyt Street a group of police officers still on N.W. Glisan Street began a “bull rush”[1] towards N.W. 12th Avenue.
When the “bull rush” reached the intersection of N.W. Glisan Street and N.W. 12th Avenue the police officers converged with other police officers who had approached from the south on N.W. 12th Avenue. The police officers began to form a new line facing north on N.W. 12th Avenue, towards the protesters who were dispersing north towards N.W. Hoyt Street approximately half a block away from the line of police officers.
Plaintiff alleges Defendant Portland Police Officer Thomas Clark did not join the officers in the line of officers, rather he “sprinted - by himself - towards the crowd of retreating protesters.” Compl. ¶ 25. According to Plaintiff, Clark Id. ¶¶ 27-28. Clark then “brought his weight down on Plaintiff's torso and covered Plaintiff's face with one hand while pressing the other against Plaintiff's neck.” Id. at ¶ 29. Plaintiff extended both of his arms with his palms out to protect his head and in doing so he brushed Clark's face shield, which caused Clark's helmet to come off because it was not strapped to his chin. Clark repeatedly punched Plaintiff in the face. Plaintiff shouted “I'm not fighting you,” but Clark grabbed Plaintiff's bike helmet and “ripped it off while it was still attached to [Plaintiff's] head.” Id. at ¶ 34. Clark then rolled Plaintiff onto his stomach and, with assistance from other police officers, tied Plaintiff's wrists behind his back and placed Plaintiff in a “mass-arrest van.” Id. at 35.
Plaintiff was charged with Assaulting a Public Safety Officer, Resisting Arrest, Interfering with a Peace Officer, and Disorderly Conduct in connection with the events of August 31, 2020. On November 4, 2020, the charges were dismissed.
On July 1, 2021, Plaintiff filed a Complaint in this Court against Clark and the City of Portland. Plaintiff brings claims against Clark pursuant to 42 U.S.C. § 1983 for excessive force and unlawful arrest in violation of Plaintiff's Fourth Amendment rights as well as state-law claims for battery, negligence, and false arrest. Plaintiff brings a claim against the City of Portland pursuant to 42 U.S.C. § 1983 for unconstitutional policy, custom, or practice in violation of Plaintiff's Fourth Amendment rights and a claim for negligence under state law.
On October 29, 2021, Clark filed a Partial Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court took the Motion under advisement on December 10, 2021.
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1) addresses the court's subject matter jurisdiction. The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over his claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007) (court treats motion attacking substance of complaint's jurisdictional allegations as a Rule 12(b)(1) motion); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) () (internal quotation omitted). Additionally, the court may consider evidence outside the pleadings to resolve factual disputes. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); see also Dreier, 106 F.3d at 847 ().
Clark moves to dismiss Plaintiff's state law claims against him pursuant to Federal Rule of Civil Procedure 12(b)(1) on the basis that the Oregon Tort Claims Act (“OTCA”) did not waive sovereign immunity for Plaintiff's state-law claims under the circumstances of this case. Specifically, Oregon Revised Statute § 30.265(6)(e) provides:
Every public body and its officers, employees and agents acting within the scope of their employment or duties . . . are immune from liability for . . . [a]ny claim arising out of riot, civil commotion or mob action or out of any act or omission in connection with the prevention of any of the foregoing.
Clark asserts the events at the time of his actions at issue in this matter occurred during a “riot, civil commotion, or mob action” or in connection with the prevention of a “riot, civil commotion, or mob action,” and, therefore, pursuant to § 30.265(6)(e), the OTCA did not waive sovereign immunity for Plaintiff's state law claims against Clark.
Plaintiff asserts the Court should deny Clark's Motion because it raises a facial rather than a factual challenge to the Court's jurisdiction and Plaintiff's allegations are sufficient on their face to establish jurisdiction. Clark, on the other hand, asserts he raises a factual challenge to jurisdiction and Plaintiff has not met his burden to establish jurisdiction under the factual challenge standard.
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)(citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). A facial “attack accepts the truth of the plaintiff's allegations but asserts that they ‘are insufficient on their face to invoke federal jurisdiction.'” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014)(quoting Safe Air for Everyone, 373 F.3d at 1039)). See also Salter v. Quality Carriers, Inc., 974 F.3d 959, 964 (9th Cir. 2020)(same). The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): “Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction.” Leite, 749 F.3d at 1121 (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir.2013)).
“A factual attack, by contrast, contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings.” Leite, 749...
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