IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

HENRY D. LIU, 

Plaintiff, 

v. 

PORTLAND STATE UNIVERSITY, 

GINA SENARIGHI, KALI SIMMONS, 

et al., 

Defendants. 

MICAH D. FARGEY 

Chenoweth Law Group P.C. 

510 S.W. Fifth Avenue 

Fifth Floor 

Portland, OR 97204 

(503) 221-7958 

Attorneys for Plaintiff 

TRACY REEVE 

Portland City Attorney 

J. SCOTT MOEDE 

WADE H. TUCKER 

Deputy City Attorneys 

1221 S.W. Fourth Avenue, Suite 430 

Portland, OR 97204 

(503) 823-4047 

3:14-CV-00908-BR 

OPINION AND ORDER 

Attorneys for Defendants City of Portland, Portland 

Police Bureau, James Crooker, John Hughes, and Jason 

Walters 

1 - OPINION AND ORDER 

Case 3:14-cv-00908-BR Document 29 Filed 08/15/14 Page 1 of 8
KAREN O'KASEY 

JASON R. POSS 

Hart Wagner LLP 

1000 S.W. Broadway, Twentieth Floor 

Portland, Oregon 97205 

( 503) 222-4 4 99 

Attorneys for Defendants Oregon Health & Sciences 

University, Michael Schumaker, Peter Rapp, Paul K. 

Leung, Anne F. Gross, Bridgid Crowley, Joshua W. 

Russell, and Robert Hendrickson 

DUNCAN K. FOBES 

NICOLE BRODIE JACKSON 

Patterson Buchanan Fobes & Leitch, Inc., P.S. 

2112 Third Avenue, Suite 500 

Seattle, WA 98121 

(206) 462-6700 

Attorneys for Defendants Cascadia Behavioral 

Healthcare, Sarah Shellhorn, Jay Auslander, Meg Kaveny, 

and Rachel Phariss 

P.K. RUNKLES-PEARSON 

SHARAE M. WHEELER 

Miller Nash LLP 

111 S.W. Fifth Avenue 

Suite 3400 

Portland, OR 97204 

(503) 205-2314 

Attorneys for Defendants Kali Simmons and Gina 

Senarighi 

BROWN, Judge . 

This matter comes before the Court on Defendant Kali 

Simmons's Motion (#7) to Dismiss for Failure to State a Claim 

Upon Which Relief Can Be Granted (Pursuant to Fed. R. Civ. P. 

12(b) (6))and Defendant Gina Senarighi's Motion (#8) to Dismiss 

for Failure to Effect Proper Service of Process (Pursuant to Fed. 

R. Civ. P. 12(b) (5)). For the reasons that follow, the Court 

2 - OPINION AND ORDER 

Case 3:14-cv-00908-BR Document 29 Filed 08/15/14 Page 2 of 8
GRANTS Defendants' Motions. 

BACKGROUND 

On May 2, 2014, Plaintiff filed an amended pro se complaint 

in Clatsop County Circuit Court against 40 Defendants alleging 

seventeen claims for relief related to Plaintiff's interaction 

with various Portland police officers, the seizure of Plaintiff's 

guns, Plaintiff's commitment to the Oregon Health Sciences 

University psychiatric ward, Plaintiff's expulsion from Portland 

State University, and articles about Plaintiff's expulsion 

published by the Portland State University newspaper The 

Vanguard, all occurring between April 2012 and June 2012. 

On May 6, 2014, Plaintiff hand-delivered a copy of the 

summons and amended complaint addressed to Defendant Gina 

Senarighi to the UPS Store #6227 at 3519 N.E. 15th Avenue, 

Portland, Oregon. Senarighi has a post-office box at that UPS 

location, but Plaintiff did not send copies of the summons and 

amended complaint to Senarighi's post-office box. 

On May 9, 2014, Senarighi checked her post-office box and 

found a notice advising her that she had "received a package via 

Hand Delivered [sic] ... with tracking number PROCESS SERVER on 

05/06/2014. It was received in Good condition. Please bring 

this slip to a store clerk to pick up your item within 90 

business day(s) of 05/06/2014 to avoid storage fees.n Deel. of 

3 - OPINION AND ORDER 

Case 3:14-cv-00908-BR Document 29 Filed 08/15/14 Page 3 of 8
Gina Senarighi, Ex. 1 at 1. 

On June 5, 2014, Defendants removed the matter to this Court 

on the basis of federal-question jurisdiction. 

On June 12, 2014, Defendant Kali Simmons filed a Motion to 

Dismiss on the ground that Plaintiff's Amended Complaint fails to 

state a claim against her. 

On June 12, 2014, Defendant Gina Senarighi filed a Motion to 

Dismiss on the ground that Plaintiff failed to properly effect 

service on her. 

The Court took both Motions to Dismiss under advisement on 

July 17, 2014. 

I. Standard 

SIMMONS'S MOTION (#7) TO DISMISS FOR 

FAILURE TO STATE A CLAIM 

To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as 

true, to "state a claim to relief that is 

plausible on its face." [Bell Atlantic v. 

Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. A 

claim has facial plausibility when the plaintiff 

pleads factual content that allows the court to 

draw the reasonable inference that the defendant 

is liable for the misconduct alleged. Id. at 556. 

The plausibility standard is not akin to a 

"probability requirement," but it asks for more 

than a sheer possibility that a defendant has 

acted unlawfully. Ibid. Where a complaint pleads 

facts that are "merely consistent with" a 

defendant's liability, it "stops short of the line 

between possibility and plausibility of 

'entitlement to relief.'" Id. at 557, 127 S. Ct. 

1955 (brackets omitted). 

4 - OPINION AND ORDER 

Case 3:14-cv-00908-BR Document 29 Filed 08/15/14 Page 4 of 8
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). See also Bell 

Atlantic, 550 U.S. at 555-56. The court must accept as true the 

allegations in the complaint and construe them in favor of the 

plaintiff. Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013). 

II. Discussion 

Simmons moves to dismiss Plaintiff's Amended Complaint as to 

her on the ground that she is not named as a Defendant in the 

case caption and Plaintiff does not include any allegations 

against Simmons in the body of the Amended Complaint. 

Plaintiff concedes in his Response that his Amended 

Complaint does not include specific factual allegations against 

Simmons. Plaintiff, however, asserts he can amend his Amended 

Complaint to state a claim against Simmons. 

A review of Plaintiff's Amended Complaint establishes 

Plaintiff did not include any specific factual allegations as to 

Simmons. Plaintiff, therefore, fails to state a claim against 

Simmons. Accordingly, the Court grants Simmons's Motion to 

Dismiss. 

Although Plaintiff is now represented by counsel, Plaintiff 

appeared pro se at the time he filed his Amended Complaint. The 

Ninth Circuit has made clear that the Court has an "obligation 

[when] the petitioner is pro se . to construe the pleadings 

liberally and to afford the petitioner the benefit of any doubt.'' 

Akhtar v. Mesa, 698 F. 3d 1202, 1212 (9th Cir. 2012) (quotation 

5 - OPINION AND ORDER 

Case 3:14-cv-00908-BR Document 29 Filed 08/15/14 Page 5 of 8
omitted). "[B]efore dismissing a prose complaint the . 

court must provide the litigant with notice of the deficiencies 

in his complaint in order to ensure that the litigant uses the 

opportunity to amend effectively." Id. (quotation omitted). ''A 

district court should not dismiss a pro se complaint without 

leave to amend unless it is absolutely clear that the 

deficiencies of the complaint could not be cured by amendment." 

Id. (quotation omitted). The Court, therefore, grants Plaintiff 

leave to file a second amended complaint to cure his failure to 

state a claim against Simmons. 

DEFENDANT SENARIGHI'S MOTION (#8) TO DISMISS FOR 

FAILURE TO EFFECT PROPER SERVICE OF PROCESS 

Federal Rule of Civil Procedure 12(b) (5) provides a 

defendant may move to dismiss an action if she is not properly 

served. Because Plaintiff attempted to serve Senarighi before 

this matter was removed to this Court, Oregon law governs whether 

service was proper. 

Oregon law permits service on individual defendants by 

personal service or by substituted service as prescribed in the 

Oregon Rules of Civil Procedure. Or. R. Civ. P. 7D(3) (a) (i). 

Oregon law permits a plaintiff to serve an individual defendant 

who is a "tenant of a mail agent" by 

delivering true copies of the summons and the 

complaint to any person apparently in charge of 

the place where the mail agent receives mail for 

6 - OPINION AND ORDER 

Case 3:14-cv-00908-BR Document 29 Filed 08/15/14 Page 6 of 8
the tenant, provided that: 

(A) the plaintiff makes a diligent inquiry 

but cannot find the defendant; and 

(B) the plaintiff, as soon as reasonably 

possible after delivery, causes true copies 

of the summons and the complaint to be mailed 

by first class mail to the defendant at the 

address at which the mail agent receives mail 

for the defendant and to any other mailing 

address of the defendant then known to the 

plaintiff, together with a statement of the 

date, time, and place at which the plaintiff 

delivered the copies of the summons and the 

complaint. 

Or. R. Civ. P. 7D(3) (a) (iv). 

As noted, Plaintiff hand-delivered a copy of the Summons and 

Amended Complaint addressed to Senarighi to the UPS Store #6227. 

Plaintiff, however, did not send copies of the Summons and 

Amended Complaint to Senarighi's post-office box and Plaintiff 

concedes in his Response that he did not make any effort to 

personally find Senarighi nor did he mail copies of the Summons 

and Amended Complaint to Senarighi's post-office box via firstclass mail. The Court, therefore, concludes Plaintiff did not 

properly serve Senarighi. 

Accordingly, the Court grants Senarighi's Motion to Dismiss. 

CONCLUSION 

For these reasons, the Court GRANTS Defendant Simmons's 

Motion (#7) to Dismiss for Failure to State a Claim Upon Which 

Relief Can Be Granted (Pursuant to Fed R Civ P 12(b) (6)). The 

7 - OPINION AND ORDER 

Case 3:14-cv-00908-BR Document 29 Filed 08/15/14 Page 7 of 8
Court, however, grants Plaintiff leave to file a Second Amended 

Complaint no later than August 29, 2014, to cure his failure to 

state a claim against Simmons. 

The Court also GRANTS Defendant Senarighi's Motion (#8) to 

Dismiss for Failure to Effect Proper Service of Process (Pursuant 

to Fed R Civ P 12(b) (5)) and DISMISSES Plaintiff's claims against 

Senarighi without prejudice. 

IT IS SO ORDERED. 

DATED this 15th day of August, 2014. 

ANNA J. BROWN 

United States District Judge 

8 - OPINION AND ORDER 

Case 3:14-cv-00908-BR Document 29 Filed 08/15/14 Page 8 of 8