IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DANIEL J. TANNER, 

dba TANNERITE EXPLOSIVES, 

a sole proprietorship, 

Plaintiff, 

v. 

ANITA PHILLIPS, and the 

OFFICE OF FIRE MARSHAL, 

STATE OF OREGON, 

Defendants. 

Daniel J. Tanner 

36366 Valley Road 

Pleasant Hill, OR 97455 

Pro se plaintiff 

Ellen F. Rosenblum 

Tracy J. White 

Paul Reim 

Attorney General's Office 

Department of Justice 

1162 Court Street NE 

Salem, OR 97301 

Attorneys for defendants 

Page 1 - OPINION AND ORDER 

Case No. 3:14-cv-01008-AA 

OPINION AND ORDER 

Case 6:14-cv-01008-AA Document 29 Filed 10/28/14 Page 1 of 10
AIKEN, Chief Judge: 

Defendants Anita Phillips (~Phillips") and the Oregon Office 

of the State Fire Marshal (~Marshal") move to dismiss pro se 

plaintiff Daniel J. Tanner's complaint. For the reasons discussed 

below, defendants' motion is granted and this case is dismissed. 

BACKGROUND1 

Plaintiff is engaged in the business of manufacturing 

explosives. At all relevant times, Phillips was a Marshal employee 

responsible for permitting decisions. Plaintiff planned a ~special 

effects pyrotechnic show," on July 4, 2 012, in Pleasant Hill, 

Oregon. Pl.'s Supplemental Mem. 2. Phillips, on behalf of the 

Marshal, denied plaintiff's permit to produce the show. 

Specifically, in a letter dated July 3, 2012, the Marshal explained 

that plaintiff was not authorized to produce the pyrotechnic 

explosives display because he "failed to provide the information 

needed to allow [defendants] to issue a permit." Pl.'s Supplemental 

Mem. Ex. D. Thereafter, Phillips notified the authorities in 

Pleasant Hill that plaintiff could not proceed with the display. 

On June 23, 2014, plaintiff filed a complaint in this Court, 

alleging claims under: (1) 42 U.S.C. § 1983; and (2) state tort law 

1 Plaintiff's complaint contains few factual allegations; 

however, both plaintiff and defendants include additional facts 

in their briefs. In light of plaintiff's prose status, and for 

the sake of judicial efficiency, the Court considers these facts 

in evaluating defendants' motion. 

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Case 6:14-cv-01008-AA Document 29 Filed 10/28/14 Page 2 of 10
for reckless interference with economic activity. 2 Plaintiff seeks 

$66,000 in economic damages (his fee for the special effects show) 

and $100,000 in non-economic damages resulting from physical and 

emotional distress. Compl. at pg. 5. 

STANDARD OF REVIEW 

Where plaintiff "fails to state a claim upon which relief can 

be granted," the Court must dismiss the action. Fed. R. Civ. P. 

12(b) (6). To survive a motion to dismiss, the complaint must allege 

"enough facts to state a claim to relief that is plausible on its 

face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

For purposes of a motion to dismiss, the complaint is liberally 

construed in favor of the plaintiff and its allegations are taken 

as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). 

Bare assertions, however, that amount to nothing more than a 

"formulaic recitation of the elements" of a claim "are conclusory 

and not entitled to be assumed true." Ashcroft v. Iqbal, 556 U.S. 

662, 681 (2009). Rather, to state a plausible claim for relief, the 

complaint "must contain sufficient allegations of underlying facts" 

2 Because plaintiff does not articulate a cognizable legal 

theory under 42 U.S.C. § 1983, this Court construes his complaint 

as alleging deprivation of due process under the Fourteenth 

Amendment. This claim does not apply as asserted against the 

Marshal because plaintiff failed to allege or argue the existence 

of an agency policy, custom, or practice that was the moving 

force behind the alleged constitutional violation at issue. Mabe 

v. San Bernadino Cnty. Dep't of Pub. Soc. Serv., 237 F.3d 1101, 

1111 (9th Cir. 2001). 

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Case 6:14-cv-01008-AA Document 29 Filed 10/28/14 Page 3 of 10
to support its legal conclusions. Starr v. Baca, 652 F. 3d 1202, 

1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012). 

DISCUSSION 

I. Preliminary Matters 

Three preliminary matters must be addressed before reaching 

the substantive merits of defendants' motion: ( 1) service of 

process; (2) the statute of limitations; and (3) the proper 

defendant pursuant to the Oregon Tort Claims Act (nOTCA"). 

A. Service of Process 

Defendants assert that plaintiff did not effectuate proper 

service. Courts apply a nliberal and flexible construction" of the 

service rules, particularly where a pro se plaintiff is involved. 

Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984) (discussing 

an earlier version of Fed. R. Civ. P. 4). A court is not required 

to dismiss a complaint for ineffective service of process so long 

as n(a) the party that had to be served personally received actual 

notice, (b) the defendant would suffer no prejudice from the defect 

in service, (c) there is a justifiable excuse for the failure to 

serve properly, and (d) plaintiff would be severely prejudiced if 

his complaint were dismissed." Id. 

Here, plaintiff's error was technical. It is undisputed 

defendants received actual and timely notice of this lawsuit and 

were not prejudiced by the defect in plaintiff's service. The Court 

therefore declines to dismiss this lawsuit due to ineffective 

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Case 6:14-cv-01008-AA Document 29 Filed 10/28/14 Page 4 of 10
service of process. 3 

B. Statutes of Limitations 

Defendants argue that plaintiff's claims are barred by the 

relevant statutes of limitations. Under the OTCA, which governs 

tort claims asserted against public bodies and their employees, nan 

action . . shall be commenced within two years of the alleged 

injury." Or. Rev. Stat. § 30.275(9). Likewise, claims made under 42 

U.S.C. § 1983 are subject to a two year statute of limitations in 

Oregon. See Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 

2004) (citing Or. Rev. Stat. § 12.110). Plaintiff alleges that he 

suffered harm on July 4, 2012, and he filed this lawsuit on June 

23, 2014. As such, his claims are not time barred to the extent 

they accrued on or after June 23, 2012. 

C. Proper Defendant 

Defendants argue that Phillips was improperly named in regard 

to plaintiff's state law tort claim. The Court agrees and finds 

that Phillips is not a proper defendant under the OTCA with respect 

to plaintiff's claim for reckless interference with economic 

activity because she was acting within the scope of her employment 

3 For this reason, plaintiff's second supplemental brief in 

opposition, entitled nMotion to Compel Deputy Sheriff Matt 

Hingston to Appeal at Oral Argument Hearing, and Request to 

Postpone Hearing so he can Attend and Testify to his Service of 

Summons," is moot. See Vettrus v. Bank of Am., N.A., 2012 WL 

5462914, *4 (D.Or. Nov. 6, 2012) (a case is moot if nthere is 

nothing left for this Court to do") . 

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Case 6:14-cv-01008-AA Document 29 Filed 10/28/14 Page 5 of 10
when she engaged in the allegedly wrongful conduct. See Or. Rev. 

Stat. § 30.265 (~the sole cause of action for any tort of officers, 

employees, or agents of a public body acting within the scope of 

their employment or duties . shall be an action against the 

public body only"). Accordingly, this Court construes plaintiff's 

state tort claim as asserted solely against the Marshal. 

II. Reckless Interference with Economic Activity 

Plaintiff alleges that defendants recklessly interfered with 

his economic activity by refusing to allow him to conduct a Fourth 

of July pyrotechnic display. Plaintiff's claim fails as a matter of 

law for two reasons. First, a party asserting a state law tort 

claim against a public officer or body is required to file notice 

within 180 days of the alleged loss or injury. Or. Rev. Stat. § 

30.27 5 (2) . According to plaintiff, he provided two tort claim 

notices to defendants. See Pl.'s Resp. to Mot. Dismiss Exs. A, B. 

The first alleged notice inheres to a separate injury addressed in 

a previous proceeding, which was resolved on June 16, 2012, well 

before this litigation began. Defs.' Reply to Mot. Dismiss 2; Pl.'s 

Resp. to Mot. Dismiss Ex. A. The second purported notice was filed 

on June 20, 2014, almost two years after the alleged injury and 

therefore beyond the time allowed under Or. Rev. Stat. § 30.275. 

Pl.'s Resp. to Mot. Dismiss Ex. B. 

Second, the Eleventh Amendment ~bars suits in federal court 

[for damages] against a state and its agencies brought by its own 

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Case 6:14-cv-01008-AA Document 29 Filed 10/28/14 Page 6 of 10
citizens and citizens of other states." In re Jackson, 184 F.3d 

1046, 1049 (9th Cir. 1999) (citations omitted). The Marshal is a 

political subdivision of the State of Oregon and has not consented 

to suit. Defs.' Mem. in Supp. of Mot. Dismiss 8; see also Pennhurst 

State Sch. & Hasp. v. Halderman, 465 U.S. 89, 100-01 (1984) (state 

may waive its sovereign immunity under the Eleventh Amendment by 

expressly consenting to suit). As noted previously, the Marshal is 

the proper defendant for plaintiff's state law tort claims for 

monetary relief. Plaintiff's reckless interference with economic 

activity claim is not cognizable pursuant to either the OTCA or the 

Eleventh Amendment. Defendants' motion to dismiss is granted in 

this regard. 

III. 42 U.S.C. § 1983 

Plaintiff alleges that Phillips violated his constitutional 

rights by denying him a permit for a Fourth of July pyrotechnic 

explosives display. To state a claim pursuant to 42 U.S.C. § 1983, 

the plaintiff must allege that: (1) the defendant, acting under 

color of state law, deprived him of an established statutory or 

constitutional right; and (2) qualified immunity does not attach. 

Pearson v. Callahan, 555 U.S. 223, 236 (2009). Qualified immunity 

shields "government officials performing discretionary functions . 

from liability for civil damages insofar as their conduct does 

not violate clearly established statutory or constitutional rights 

of which a reasonable person would have known." Harlow v. 

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Case 6:14-cv-01008-AA Document 29 Filed 10/28/14 Page 7 of 10
Fitzgerald, 457 U.S. 800, 818 (1981). Qualified immunity therefore 

protects "all but the plainly incompetent or those who knowingly 

violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). 

Initially, plaintiff's 42 U.S.C. § 1983 claim fails at the 

pleadings level. Plaintiff's allegations are vague, conclusory, and 

void of factual support, even considering his response and 

supplemental briefs. Specifically, plaintiff's complaint fails 

because it does not "contain sufficient allegations of underlying 

facts" to support his legal assertions. Starr, 652 F.3d at 1216. 

Plaintiff merely concludes that his right to perform pyrotechnic 

demonstrations is governed by "federal law, namely 18 USCS Section 

841 (h) (m) (n) and the doctrine of federal supremacy." Pl.'s 

Supplemental Mem. 2. Yet plaintiff's right to manufacture 

explosives as a controlled substance pursuant to 18 U.S.C. § 843 

and 18 U.S. C. § 8 41 (h) ( 3) is immaterial to the issue of whether 

defendants properly regulated his use of such explosives in a 

public Fourth of July display or denied him a fireworks permit 

under state law. Or. Rev. Stat. § 480.110 (2012, repealed by Or. 

Laws 2013, ch. 24, § 13) ("any combustible or explosive composition 

or substance, or any combination of such compositions or 

substances, or any other article which was prepared for the purpose 

of providing a visible or audible effect by combustion, explosion, 

deflagration, or detonation"). Similarly, the "doctrine of federal 

supremacy" does not preclude the state from controlling plaintiff's 

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Case 6:14-cv-01008-AA Document 29 Filed 10/28/14 Page 8 of 10
pyrotechnic demonstrations because there is no conflict of laws. In 

other words, even accepting that plaintiff is federally licensed to 

manufacture explosives, he still must comply with Oregon's laws 

regulating the use and sale of fireworks when employing his 

explosives in a public pyrotechnic display. See Or. Rev. Stat. §§ 

480.110, 480.120(1) (b) (2012); see also Or. Rev. Stat.§§ 480.111, 

480.120(1) (b), 480. 130 (2014). 

The Court finds that Phillips reasonably interpreted the 

statutory definition of fireworks to include the explosives used by 

plaintiff in this context. Without a precise description of the 

composition of plaintiff's explosives, it is not clear which 

statutory definitions are implicated. Regardless, plaintiff's 

explosives, when used in a public pyrotechnic display, qualify as 

fireworks under Oregon law, such that a permit is required. It is 

undisputed that plaintiff did not obtain a fireworks permit because 

he failed to provide defendants with the requisite information. 

Thus, Phillips' decision to prohibit plaintiff from his 

pyrotechnic demonstration when he did not have a permit from the 

Marshal was neither a violation of his clearly established rights 

nor unreasonable. Phillips is therefore entitled to qualified 

immunity. Defendants' motion to dismiss is granted as to 

plaintiff's 42 U.S.C. § 1983 claim. 

CONCLUSION 

Defendants' Motion to Dismiss (doc. 16) is GRANTED. 

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Case 6:14-cv-01008-AA Document 29 Filed 10/28/14 Page 9 of 10
Defendants' request for oral argument is DENIED as unnecessary. 

This case is DISMISSED and all pending motions are DENIED as moot. 

IT IS SO ORDERED 

Dated this 25{ of October 2014. 

Ann Aiken 

United States District Judge 

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