1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TERA HARRIS,

No. 3:15-cv-00853-HZ

Plaintiff,

OPINION & ORDER

v.

CITY OF PORTLAND POLICE 

DEPARTMENT, ET AL,

Defendants.

Tera Harris

5430 SE 119th Ave.

Portland, OR 97206

Pro Se Plaintiff

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Jenny M. Madkour, County Attorney 

For Multnomah County, Oregon

Jacqueline S. Kamins

Assistant County Attorneys 

501 SE Hawthorne Blvd., Suite 500 

Portland, OR 97214

Attorneys for Defendants

HERNÁNDEZ, District Judge:

Pro se Plaintiff Tera Harris filed this suit against the City of Portland Police Department, 

several individual police officers, and two Multnomah County Sheriff’s Deputies, alleging 

violations of her constitutional rights. Deputies Chris Hudson and Wendy Muth (collectively 

“County Defendants”) now move to dismiss Harris’s claims for lack of subject matter 

jurisdiction, and failure to demand relief.

1 I deny the motion. 

BACKGROUND

Harris’s complaint arises from three incidents which occurred between May and July of

2013. The first occurred on May 20, 2013—Harris alleges that she suffered injuries after 

Portland Police Officers Lawrence Keller and Phillip Maynard used “excessive force” while 

briefly detaining her. Am. Compl. at 3–4, ECF No. 9. On July 5, 2013, Harris claims that

Officers Bruders and Thurman wrongfully arrested her following a fight at her sister’s residence. 

Am. Compl. at 5. Then, on July 14, 2013, Officer Thorsen arrested Harris for “drunk driving” 

after she ran a red light. Am. Compl. at 5–7. Following her arrest, she claims she was taken to

Multnomah County Jail, where Deputies Hudson and Muth “forced [her] to the ground” during 

booking. Am. Compl. at 7. Deputy Hudson then jumped on her, while “Deputy Muth and other 

deputies held [her] down.” Am. Compl. at 7–8. Subsequently, she was held at the Jail for 

 1 Here, the Court is addressing Harris’s claims against the County Defendants. Her claims against the City 

Defendants are addressed in a separate Opinion & Order. 

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approximately thirty days, where unidentified officers allegedly beat and tased her, force-fed her

medication, and prevented Harris from speaking to her attorney. Am. Compl. at 8–9. 

On May 19, 2015, Harris filed an application to proceed in forma pauperis (“IFP”), a 

complaint, and a motion for appointment of counsel. The Court granted Harris permission to 

proceed IFP, but denied her motion for appointment of counsel and dismissed her complaint sua 

sponte without prejudice for failure to state a cognizable claim. Harris submitted an amended

complaint which the County Defendants now move to dismiss. 

STANDARDS

A. Federal Rule Civil Procedure 12(b)(1) Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) addresses a

court’s subject matter jurisdiction. According to this rule, the moving party may raise a “facial” 

or “factual” attack. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a 

facial attack, the moving party asserts that allegations are insufficient on their face to invoke 

federal jurisdiction. Id. A district court resolves facial attacks as it would under Rule 12(b)(6), 

where the court must accept all material facts alleged in the complaint as true and construe them

in the light most favorable to the plaintiff. Leite v. Crane Co., 749 F.3d 1117, 1119 (9th Cir. 

2014). In a factual attack, the moving party disputes factual allegations and may introduce 

evidence to support their motion. Id.; see also Dreier v. U.S., 106 F.3d 844, 847 (9th Cir. 1996)

(a challenge to the court’s subject matter jurisdiction under Rule 12(b)(1) may rely on affidavits 

or any other evidence properly before the court).

B. Pleadings & Amendments – Rule 8(a)(3), 15(a)(2)

“A complaint is completed by a demand for relief.” Pierce v. Wagner, 134 F.2d 958, 960 

(9th Cir. 1943). Non-conforming pleadings may be amended with the opposing party’s written 

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consent, or the court’s leave. Fed. R. Civ. P. 15(a)(2). Courts should grant leave to amend when 

justice requires, but a court need not grant leave to amend when the amendment “(1) prejudices 

the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is 

futile.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). 

Futility can, by itself, justify denial of a motion for leave to amend. Gonzalez v. Planned 

Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir. 2014). Amendment is futile “only if 

no set of facts can be proved . . . that would constitute a valid and sufficient claim or defense.” 

Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).

DISCUSSION

The County Defendants move to dismiss Harris’s claims for lack of subject matter

jurisdiction and for failure to state a claim. The County Defendants argue that this Court lacks 

subject matter jurisdiction because Harris “only alleges negligence claims against the County 

Defendants.” Defs. Reply at 3. They also maintain that Harris fails to state a claim against them 

because “the entirety of the requested relief is directed at the City Defendants.” Defs. Reply at 5. 

I. Subject Matter Jurisdiction 

The County Defendants raise a facial challenge to Harris’s complaint, as they do not 

contest the truthfulness of Harris’s statements. Defs. Reply at 3 (“Plaintiff... only alleges 

negligence claims against the County Defendants.”). In assessing the County Defendants’ facial 

attack, the Court must accept all material facts in Harris’s complaint as true, and construe them 

in a light most favorable to her. Leite, 749 F.3d at 1119. Moreover, because Harris is pro se, the 

Court is obligated to liberally construe her complaint. Bretz v. Kelman, 773 F.2d 1026, 1027 (9th 

Cir. 1985). Harris’s complaint clearly invokes 42 U.S.C. § 1983 and asserts violations of her 

Second, Fourth, Eighth, Ninth, and Fourteenth Amendments. Am. Compl. at 3. Specifically, 

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Harris states that Deputies Hudson and Muth “forced [her] to the ground,” whereupon Deputy 

Hudson jumped on her and “started grinding his knees in [her] back.” Am. Compl. at 7–8. 

Although it is not entirely clear at what stage in criminal proceedings the events with Deputies 

Hudson and Muth occurred, they implicate Harris’s rights under at least one of the Fourth, 

Eighth, or Fourteenth Amendments. Bustamante v. Roman, No. CV 080116-PHX-DGCJRI, 

2008 WL 622021, at *2 (D. Ariz. Mar. 5, 2008) (“The Fourth Amendment applies to excessive 

force claims by pretrial detainees, while the Eighth Amendment applies to excessive force claims 

of convicted inmates”) (citing Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir. 2003); 

Hudson v. McMillian, 503 U.S. 1, 7 (1992); Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). 

Obviously, the Court has federal question jurisdiction in matters concerning the Fourth, Eighth, 

and Fourteenth Amendments. Thus, the County Defendants’ motion to dismiss for lack of 

subject matter jurisdiction is denied. 

II. Failure to Demand Relief 

The County Defendants further assert that the entirety of Harris’s requested relief is 

aimed at the City Defendants, therefore, she cannot maintain a case against the them. Defs. 

Reply at 5. In her complaint, Harris requests that “the courts file an injunction to the City of 

Portland Police,” and for “the City of Portland to pay for my medical bills...” but she does not 

request relief from any County Defendant specifically. Am. Compl. at 11. However, she makes a 

general request for $2.5 million dollars at the very end of her complaint. Id. In liberally 

construing Harris’s pro se complaint, it is not a stretch to interpret her request for $2.5 million 

dollars as being leveled at all defendants. Consequently, the County Defendants’ motion to 

dismiss for failure to demand relief is denied. 

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III. Oregon Tort Claims Act

Next, the County Defendants argue that because Harris failed to provide notice of her 

claims pursuant to the Oregon Tort Claims Act, the “negligence claims in Claim Three of her 

complaint against the County Defendants must be dismissed.” Defs. Reply at 4. Indeed, failure to 

plead that notice of claims was given in accordance with the OTCA subjects a complaint to 

dismissal. Halseth v. Deines, No. CIV. 04-196-AS, 2004 WL 1919994, at *3 (D. Or. Aug. 26, 

2004). However, Harris makes only constitutional claims in her Amended Complaint. Am. 

Compl. at 7–9. She references a negligence claim in her Response (see Pl. Resp. at 2), but those 

allegations must be made in a complaint. Further, her failure to comply with the OTCA would 

not affect her federal claims. Halseth, 2004 WL 1919994, at *4 (holding that OTCA notice 

requirements do not apply to claims based on Section 1983.); see also Baumgarner v. Cmty 

Servs., Inc., 992 F. Supp. 2d 1081, citing Felder v. Casey, 487 U.S. 131 (1988) (reversing on the 

ground that the notice requirement of a Wisconsin state notice-of-claim statute was “pre-empted 

as inconsistent with federal law”). 

IV. Second & Ninth Amendment Claims 

Finally, Harris alleges that her Second and Ninth Amendment rights were violated. Am. 

Compl. at 3. The Second Amendment to the federal Constitution provides: “A well regulated 

Militia, being necessary to the security of a free State, the right of the people to keep and bear

Arms, shall not be infringed.” U.S. Const. amend. II. Harris does not allege any facts in any of

her pleadings that suggest any of the County Defendants violated her rights under the Second 

Amendment. Harris has now had three opportunities to explain the basis for her claims and has 

failed to allege any facts that could support a Second Amendment claim. Therefore, Harris’s 

Second Amendment claims are dismissed with prejudice, as it is evident that further amendment 

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would not cure the deficiencies in these claims. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 

2000); see also Robinson v. SAIF, No. 3:12-CV-00120-MO, 2012 WL 3313216, at *1 (D. Or. 

Aug. 10, 2012) (dismissing pro se plaintiff’s claims sua sponte for failure to state a claim) (citing 

Omar v. Sea-Land Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987)). The Ninth Amendment to 

the federal Constitution provides: “The enumeration in the Constitution of certain rights, shall 

not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX. The 

Ninth Amendment “has not been interpreted as independently securing any constitutional rights 

for purposes of making out a constitutional violation.” Schowengerdt v. United States, 944 F.2d 

483, 490 (9th Cir. 1991). “It is a common error, but an error nonetheless, to talk of ‘[N]inth 

[A]mendment rights.’ The [N]inth [A]mendment is not a source of rights as such; it is simply a 

rule about how to read the Constitution.” San Diego County Gun Rights Comm. V. Reno, 98 

F.3d 1121, 1125 (9th Cir. 1996) (quotation omitted). As a result, Harris’s Ninth Amendment 

claims are also dismissed with prejudice. See United States v. Bacon, No. 05-CR-333-BR, 2007 

WL 543439, at *4 (D. Or. Feb. 15, 2007); Robinson, 2012 WL 3313216 at *1.

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CONCLUSION

For the aforementioned reasons, the County Defendants’ motion to dismiss [20] for lack 

of subject matter jurisdiction and failure to demand relief is DENIED. Harris’s claims under the 

Second and Ninth Amendment are dismissed sua sponte for failure to state a claim. 

IT IS SO ORDERED.

Dated this day of ______________________, 2016.

 

MARCO A. HERNÁNDEZ

United States District Judge

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