Moss v. United States Secret Serv.

• Decision Date: 29 October 2010
• Docket Number: Case No. CV 06–3045–CL.
• Citation: 750 F.Supp.2d 1197
• Parties: Michael MOSS, et al., Plaintiffs,v.UNITED STATES SECRET SERVICE, Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Oregon

750 F.Supp.2d 1197

Michael MOSS, et al., Plaintiffs,

v.UNITED STATES SECRET SERVICE, Department of Homeland Security, et al., Defendants.

Case No. CV 06–3045–CL.

United States District Court,D. Oregon,Medford Division.

Oct. 29, 2010.

Arthur B. Spitzer, American Civil Liberties Union of the National Capital Area, Washington, DC, Ralph J. Temple, Ashland, OR, Steven M. Wilker, James K. Hein, Paul W. Conable, Tonkon Torp LLP, Portland, OR, for Plaintiffs.Brant S. Levine, U.S. Department of Justice, Jeremy S. Brumbelow Washington, DC, Robert E. Franz, Jr., Law Office of Robert E. Franz, Jr., Springfield, OR, Roger J. Dehoog, Oregon Department of Justice, Kevin H. Kono, Robert D. Newell, Davis Wright Tremaine, LLP, Portland, OR, for Defendants.

ORDER

PANNER, District Judge.

Magistrate Judge Mark D. Clarke has filed a Report and Recommendation, and the matter is now before this court. See 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b). When either party objects to any portion of a Magistrate Judge's Findings and Recommendation, the district court reviews that portion of the Magistrate Judge's report de novo. 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.1981). Here, defendants have filed timely objections, so I have reviewed the file de novo.

DISCUSSION

On interlocutory appeal, the Ninth Circuit reversed and remanded this court's rulings on defendants' motions to dismiss plaintiffs' first amended complaint. Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir.2009). The Ninth Circuit ruled that plaintiffs “should be granted leave to amend their complaint so that they have the opportunity to comply with [ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ].” Moss, 572 F.3d at 965.

After remand, plaintiffs have filed a second amended complaint. Defendants move to dismiss based on qualified immunity and failure to state a claim. Judge Clarke's comprehensive Report and Recommendation concludes that defendants' motions should be denied in part.

I agree with Judge Clarke that the second amended complaint meets the stricter pleading standards imposed by Twombly and Iqbal as to plaintiffs' claims for First Amendment violations against the federal defendants; for First and Fourth Amendment violations and common law claims against the County defendants; for Fourth Amendment violations against the State defendants; and for Fourth Amendment violations and common law claims against the City defendants. R & R at 71.

I also agree with Judge Clarke that defendants have not shown, at least at this stage of the litigation, that they are entitled to qualified immunity. Defendants cite Dunn v. Castro, 621 F.3d 1196 (9th Cir.2010), as supplemental authority for their argument that Judge Clarke defined the First Amendment right at issue here too broadly. The Dunn opinion, which concerned an incarcerated father's right to receive visits from his children, does not undercut Judge Clarke's analysis of the qualified immunity issue.

Judge Clarke recommends dismissing plaintiffs' remaining claims. For the reasons stated in Judge Clarke's prior Report and Recommendation, I agree that plaintiffs' remaining claims should be dismissed. Accordingly, I ADOPT the current Report and Recommendation in its entirety.

CONCLUSION

Magistrate Judge Clarke's Report and Recommendation (# 178) is adopted. Defendants' motions (# 154, # 156, # 162, and # 164) are granted in part and denied in part as set forth in the Report and Recommendation.

IT IS SO ORDERED.

REPORT & RECOMMENDATION

CLARKE, United States Magistrate Judge:

Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) alleging claims for violations of the First, Fourth, Fifth, and Fourteenth Amendments, the Oregon Constitution, and Oregon common law by Defendants. They seek compensatory and punitive damages and injunctive and declaratory relief from Defendants for alleged unconstitutional, unlawful, and tortious actions against Plaintiffs and Plaintiff Class, arising out of and related to Defendants' disruption of Plaintiffs' lawful assembly and protest demonstration in Jacksonville, Oregon, on October 14, 2004.

Named Plaintiffs ¹ include Michael Moss, Lesley Adams, Beth Wilcox, Richard Royer, Lee Frances Torelle, Mischelle Elkovich, Anna Vine, and the Jackson County Pacific Green Party.

Named Defendants include United States Secret Service of the Department of Homeland Security (“Defendant Secret Service”), Mark Sullivan, Tim Wood, Rob Savage, John Doe 1, David Towe, City of Jacksonville, Ron Ruecker, Timothy F. McLain, Ran die Martz, Eric Rodriguez, Mike Winters, Jackson County, and John Does 2–20, Municipal Doe Defendants.

For the purposes of this report and recommendation, the defendants will be referred to by the following:

“Secret Service Defendants” or “Federal Defendants”: Defendant Secret Service and individual defendants Sullivan, Basham, Wood, Savage, and John Doe 1.

“State Defendants”: Defendants Ruecker, McLain, Martz, and Rodriguez.

“Local Defendants”: City of Jacksonville, Jackson County, individual defendants Towe, Winters, John Does 2–20, and Municipal Doe Defendants.

Plaintiffs filed their second amended complaint (“SAC”) on October 15, 2009. ² Before the court are Defendants' motions to dismiss and motion for summary judgment. The motions are granted as to all claims previously dismissed by this court on June 8, 2007 ³ to include all injunctive and declaratory relief claims, claims for relief for violations of the Fifth and Fourteenth Amendment, and claims for relief under the Oregon Constitution. (Report & Recommendation, Dkt. No. 107 (“2007 R & R”) 35.) As to specific motions before the court:

Federal Defendants' motion to dismiss (# 164) is denied in part and granted in part. Motion is denied as to Plaintiffs' claims for damages from individual federal defendants for violation of the First Amendment rights. Consistent with the 2007 R & R, motion is granted to dismiss claims against Basham for lack of personal jurisdiction, and the Bivens claim against federal defendants for violations of Fourth Amendment rights.

State Defendants' motion to dismiss (# 162) is granted in part and denied in part. Motion is granted to dismiss claims against Ron Ruecker and Eric Rodriguez in their individual capacities for violations of their First Amendment right. Motion is denied as to claims for violations of Fourth Amendment.

Jackson County Defendants' motion to dismiss (# 154) is granted, consistent with the 2007 R & R as to injunctive and declaratory relief and relief under the Oregon Constitution.

City of Jacksonville Defendants' motion to for summary judgment (# 156) is construed as a motion to dismiss as to Plaintiffs' § 1983 claims. ⁴ The motion is granted as claims for violation of Plaintiffs' First Amendment rights and denied as to claims for violations of Fourth Amendment rights. City Defendants' motion for summary judgment as to claims under Oregon common law is premature and held in abeyance pending the close of discovery.

I. Procedural HistoryA. First Amended Complaint

Plaintiffs filed their complaint on July 6, 2006, and filed their first amended complaint (“FAC”) on September 26, 2006, alleging claims for violations of the First, Fourth, Fifth, and Fourteen Amendments, as well as state law claims for violations of the Oregon Constitution, and Oregon common law claims of assault and battery, false imprisonment, and negligence. Plaintiffs sought declaratory and injunctive relief, compensatory and punitive damages, interest, attorneys fees, and costs. (Dkt. Nos. 1 and 21.) Defendants collectively filed motions to dismiss and a motion for summary judgment. (Dkt. Nos. 52, 53, 56, 62, 68, and 72.) The court determined that Defendants' summary judgment motions should be held in abeyance pending the close of discovery and considered only the motions to dismiss. (Dkt. No. 103.)

After oral argument, Magistrate Judge Mark Clarke recommended that these motions be granted in part and denied in part.

Specifically, the court finds that: 1) plaintiffs' allegations fail to establish plaintiffs have standing to seek prospective relief; 2) plaintiffs' substantive due process claims are barred as they are covered by the First and Fourth Amendments; 3) plaintiffs cannot seek damages for violations of the Oregon Constitution; 4) to the extent that plaintiffs are suing state officials in their official capacity for retrospective declaratory relief, plaintiffs' claims are barred by the Eleventh Amendment; 5) plaintiffs have failed to establish personal jurisdiction over defendant Basham; 6) plaintiffs' complaint fails to state a Fourth Amendment claim against defendants Wood and Savage; 7) taking plaintiffs' allegations as true, plaintiffs have pleaded a violation of clearly established First Amendment law by the federal defendants.

(2007 R & R, 2.) District Court Judge Owen Panner adopted the recommendation. (Dkt. No. 130.)

Claims remaining included: ⁵

(1) against Federal Defendants: the Bivens claim for Federal Defendants' violation of Plaintiffs' First Amendment Rights and for attorneys fees under § 1988.

(2) against State, County and City Defendants: § 1983 claims for violations of their First and Fourth Amendment Rights and § 1988 claim for attorney fees.

(3) against City and County Defendants: § 1983 claims for violations of their First and Fourth Amendment Rights, § 1988 claim for attorneys fees, claims for punitive damages, and claims for compensatory damages for violations of Oregon common law for assault and battery, false imprisonment, and negligence.

Federal Defendants filed an interlocutory appeal, appealing the district court's denial of its motion to dismiss claims against them and the denial of their defense of...